Sita Ram Agarwalla and Another vs Jamunadas Agarwalla

G.N. Prasad, J.—The Judgment-debtors are the appellants. The appeal is directed against the order of the executing court, rejecting their objection u/s 47 of the Civil Procedure Code. The decree under execution is one of eviction and the decree-holder has applied for delivery of possession through court.

The main contention of the learned Counsel before me is that the decree is a nullity and as such it can be ignored by the executing court. The decree is characterised as nullity on the ground that the suit was institute ed by the landlord under the provisions of Section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, without determining the tenancy by a proper notice to quit, which, as held by the majority of the Judges of the Full Bench in the case of Niranjan Pal and Another Vs. Chaitanyalal Ghosh and Another, , is a pre-condition to the institution of such a suit for eviction.

It must be stated at the out set that this point is not open to the appellants at this stage. It was not raised in either of the two courts below and there is no material before this Court to determine whether or nor the suit for eviction was preceded by a valid notice to quit. Whether such a valid notice had been served or not is a mixed question of law and fact and, in the absence of requisite finding of fact, it is not possible for this Court in Second Appeal to decide such a question raised for the first time before it.

Assuming, however, that it is open to the learned Counsel to canvass this point in this Court, I am clearly of the opinion that there is no merit in it. There is nothing in the judgment of the Full Bench of this Court, referred to above, which might suggest that if a decree for eviction is, in fact, passed by a court, where the suit has been instituted without determination of the tenancy according to law, then the decree for eviction would, on that ground alone, be a nullity. There can not be any doubt that there must be a cause of action for a suit, and, in a suit for eviction the cause of action is furnished by serving upon the tenant a valid notice to quit. Until such a notice is served, the landlord has no right to come to court and ask for the ''eviction of the tenant. But the question as to whether there is or is not such a cause of action has to be determined by the court and the court can only determine this question one way or the other if it has seisin over the suit. If the exercise of its jurisdiction the court holds that there is no cause of action then the court will naturally dismiss the suit. But, before the court is able to come to such a finding, it must have jurisdiction over the suit. If the court has no such jurisdiction then it will follow that it has also no jurisdiction to pronounce upon the absence or otherwise of cause of action. I am, therefore, clearly of the view that no question of inherent lack of jurisdiction in the court arises if it, for example, wrongly decrees a suit, without disclosure of proper cause of action. The decree may be wrong in law and may be set aside by the appellate court on that ground, but, by no stretch of imagination, the decree would be without jurisdiction.

It is well settled that the executing court is not entitled to go behind the decree, otherwise it would be sitting in appeal over the court which has passed the decree. The executing court can only refuse to execute the decree if the decree is a nullity and not merely if the decree is wrong in law. A decree would be nullity where for example, the court which has passed the decree had inherent lack of jurisdiction over the subject matter of the suit, but, if it had jurisdiction over the subject matter of the suit, then the decree will not be nullity, even though the decision may be contrary to law. Learned Counsel for the appellants has not been able to bring to my notice a single decision where it has been held that if there is no cause of action, disclosed in the plaint, and yet the suit is decreed, then the decree is a nullity.

Learned Counsel has, however, relied upon a number of decisions in order to substantiate his point. The first case to which my attention has been drawn is Ram Narain v. Lala Suraj Narain A. I.R. 1934 Oudh 75, which is a Full Blench decision. Shortly stated, the position in that case was that in a suit instituted on the basis of a mortgage bond in the Subordinate Judge''s court, the Munsif of Bilgram passed a decree absolute for sale of the mortgaged property. Their Lordships pointed out that the Munsil was incompetent to pass the final decree, because he did not possess the necessary pecuniary powers and because he lacked inherent jurisdiction, inasmuch as the preliminary decree in the suit had been passed by the Subordinate Judge. It was in this context that their Lordships held that the decree was a nullity and it was open to the executing court to refuse to execute it. It will be observed that this was a case of inherent lack of jurisdiction in the court which passed the decree. There can be no inherent, lack of jurisdiction in a court which passes a decree in a suit in which no cause of action has been disclosed. It would be useful at this stage to refer to the observations of Sinha, C.J. (as he then was) in the case of Seth Hiralal Patni Vs. Sri Kali Nath, , which also has been relied upon by the learned Counsel, At page 200 his Lordship observed-

The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.

In the case before their Lordships a decree of the Bombay High Court was assailed as without jurisdiction on the ground that that Court had no jurisdiction to entertain the suit as no part of the cause of action arise within the territorial jurisdiction of that Court. Their Lordships held that there was no inherent lack of jurisdiction in the Bombay Court. The Supreme Court decision does not, in any way, support the point sought to be made by the learned Counsel before me.

The case of Bai Shakri Vs. Bapusinghji Takhatsinhji, cited by the learned Counsel is really not in point. There a suit was instituted against a Ruling Chief, without complying with the requirements of Sub-section (1) of Section 86 of the Code of Civil Procedure, which lays down that "No Ruler of a foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government." On account of this provision, the jurisdiction of the court to try the suit depended upon the consent of the Central Government and since no material certifying the consent of the Central Government was in existence, it was held that the court had no Jurisdiction at all to entertain the suit. This again was a case of total absence of jurisdiction, which rendered the decree a nullity. I have looked in vain for any provision in the CPC which says that nor court shall try a suit unless it is founded upon a valid cause of action. I need hardly repeat that unless the court entertains the suit, it cannot possibly come to the decision, as to whether or not the suit is founded upon a valid cause of action. Therefore, the inherent jurisdiction of the court is in no way affected if the suit does not disclose a valid cause of action. On the contrary, Clause (a) of Rule 11 of Order VII of the CPC enjoins upon the court to reject a plaint where it docs not disclose a cause of action. That is in consonance with the view which I have expressed that the Court does not lack inherent jurisdiction in such a case, otherwise it would be incompetent to reject the plaint even where it holds that it does not disclose a cause of action.

In the case of Govinddas Vs. Parmeshwaridas, again a Full Bench decision, the facts were that a suit instituted as a regular suit had been transferred to and tried by a Small Cause Court Judge. The suit was not triable by the Small Cause Court at all and hence their Lordships held that the decree of the Small Cause Court was a nullity, since it was passed by a court which had no jurisdiction over the suit and such a decree could be challenged in the executing court. This again was a case where the court passing the decree suffered from inherent want of jurisdiction.

The case of Nar Singh Kalu Kalota Vs. Rao Nihalkaran Raoraja, is not in point at all. What was decided there was that it is open to the, executing court to take note of a subsequent change in the law, whereby the rights of the decree-holder are extinguished or modified. No such consideration arises in the present case.

A single Judge decision of the Madras High Court in the case of Meenakshi Ammal Vs. T.S. Chidambaram Chettiar (died) and Another, was also brought to my notice. There it was held that although an executing court cannot go behind the decree, it is open to it to refuse to direct the sale of certain property the alienation of which is prohibited by statute. By refusing to execute the decree against a certain property on the ground that its alienation is prohibited by law does not really amount to going behind the decree, but it merely amounts to directing the execution of the decree in accordance with law. Therefore, this decision also is of no avail to the appellants in this case.

Finally my attention was also drawn to the case of Kiran Singh and Others Vs. Chaman Paswan and Others, . The point laid down there was-

It is a fundamental principle well-established that a decree passed by a Court Without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

There cannot be any room for doubting the principle laid down by their Lordships above, but I find nothing in the decision of their Lordships which might lend support to the proposition that the non-existence of a valid cause of action strikes at the very authority of the court to pass a decree. In my opinion, a court has first to assume jurisdiction over a suit and then to pronounce upon the existence or otherwise of a valid cause of action. Therefore, a decree is not rendered a nullity merely on the ground that the court passing the decree ought to have held that there was no valid cause of action.

For the aforesaid reasons. I am of the opinion that there is no substance in the point put forward on behalf of the appellants before me.

It appears that in the courts below the decree was also challenged as unexecutable on the ground of vagueness. But, both the courts below have concurrently held that there is no vagueness in the decree. The decree is directed against two rooms on the first floor and the kitchen on the second floor, of a certain building. Evidently, the decree refers to the rooms and the kitchen which formed the subject-matter of the tenancy, or, which was in occupation of the judgment-debtors. In my opinion, the courts below have rightly rejected the contention put forward before them on the basis of vagueness of the decree.

For the reasons given above, this appeal fails and is accordingly dismissed with costs.