ivil Appeal No 4599 of 1989
From the Judgment and order dated 1691988 of the Punjab and Haryana High Court in Review Application 22 CII of 1988 in Civil Revision No 2439 of 1980
SP Goel GB Singh and KK Mohan for the Appellant
SM Ashri for the Respondent
The Judgment of the Court was delivered by K RAMASWAMY J
Special leave granted
This appeal under Article 136 arises against the order dated Sept 16 1988 of the High Court of Punjab  Haryana refusing to review the order dated August 11 1988 made in Civil Revision No 243980 on its file
The facts leading to the decision are that the respondent Govind Ram the father of the respondentslandlord laid the suit No 11877 ini tially numbered as OS No 27675 on the file of Sr
Sub Judge for ejectment and recovery of arrears of rent and damages for use and occupation of the shop in Gurgaon let out to the appellanttenant
The suit was originally laid in the Court of Sub 152 Judge IIIrd Class Gurgaon which was transferred later to the Sr
Sub Judge Gurgaon which was decreed ex parte on October 20 1977
The application under Order 9 Rule 13 CPC to set aside the ex parte decree was dismissed on January 10 1979 and was confirmed on appeal on August 17 1979 and in revision by the High Court on October 15 1979
When the landlord laid the execution application for eject ment the appellant objected under section 47 of CPC contending that the decree of the Civil Court is a nullity as the premises in question is governed by the Haryana Urban Control of Rent  Eviction Act 11 of 1973 for short the Act 
The Controller under the Act is the competent forum regarding claims for ejectment on fulfilment of any of the conditions enumerated under Section 13 thereof
The Civil Court is divested of jurisdiction to take cognisance and pass a decree for ejectment of the appellant
That objection was overruled and on further revision the High Court dis missed the revision by order dated March 19 1980
Simulta neously he also filed Writ Petition under Article 227 which was dismissed on September 30 1988
This appeal is directed against that order of dismissal
The contention raised by Shri SP Goel the learned Sr counsel for the appellant is that by operation of Section 13 of the Act the only authority to pass a decree of ejectment of the appellant tenant is the Controller under the Act and by necessary implication the jurisdiction of the Civil Court is ousted
The Civil Court lacked inherent jurisdiction to take cognisance of the cause and to pass a decree
The decree is thus a nullity
The challenge to a decree on the ground of nullity can be raised at any stage and even in execution
The courts below have committed manifest error of law in not considering the legal question in its proper perspective
The shop consists of the original building belonging to the landlord but a small part thereof in the frontside was constructed on municipal land
Tenancy of the building is governed by the Special Act and therefore the decree of the Civil Court is a nullity and is inexecutable
Shri Ashri the learned counsel for the respondents refuted this contention
Firstly he argued that the leave applica tion is barred by limitation
Secondly he contended that the appellant had raised the plea of want of jurisdiction at the trial
Though he remained ex parte the trial court considered the objection under issue Nos 4 and 5 and over ruled the objection
The decree became final thereby the decree operates as res judicata
He also further contends that the Act does not apply to the building in question
Under Section 3 municipal land is exempted from the provi sions of the Act and thereby the only forum to lay the action is the Civil Court
The Civil Court having jurisdic tion has validly granted the 153 decree
The decree having been allowed to become final it is not open to the appellant to ask the executing court to go behind the decree The question that emerges is whether the Civil Court lacked inherent jurisdiction to entertain the suit for ejectment of the appellant tenant and the decree so passed is a nullity
The Act was enacted with the object of con trolling the increase of rent of buildings and rented lands situated within the limits of urban areas and the eviction of the tenants therefrom
Section 2a defines building  which means any building or a part of a building let for any purpose whether being actually used for that purpose or not including any land     appurtenant to such building     but does not include a room in a hotel hostel or boarding house
Section 2b defines Controller  as any person who is appointed by the State Government to perform the functions of a Controller under the Act
Landlord has been defined under Section 2c and Section 2f defines rented lands to mean any land let separately for the purpose of being used principally for business or trade Tenant  has been defined under Section 2h
Section 3 authorises the State Government by notifica tion to exempt any particular building or rented land or any class of building or rented lands from the application of any or all the provisions of the Act
Section 13 contains the provisions for eviction of tenants Sub section
1 thereof reads Eviction of tenants 1 A tenant in posses sion of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section
 The other provisions are not necessary
The sole ground raised by the landlord for eviction was that the appellant had committed default in the payment of rent and thereby had became liable for ejectment
Accordingly he issued a notice under Section 106 of the Transfer of Property Act determin ing the tenancy and laid this suit
Section 13 gives the right to the landlord to seek eviction of the tenant for default in the payment of rent
The Act provides the protec tion of continued tenancy and remedy of ejectment for breach of covenants in the lease and other statutory grounds as provided
It provides that the remedy and the forum and the decree of ejectment passed by the Controller or the appel late authority or the revisional authority or confirmation thereof either in appeal or revision is final under the Act
Thereby the exclusive jurisdiction to take cognisance of the cause of action for ejectment of the tenant from a building or rented land situated in urban areas is governed by the provisions of the Act and is 154 exclusively to be dealt with under Section 13 of the Act
By necessary implication the jurisdiction of the Civil Court under Section 9 of CPC is excluded
It is undoubtedly true that open land is a part of the frontage of the shop and belonged to the municipality which the landlord had taken on lease from the Municipality
As regards the munici pal land the landlord was a lessee of the Municipal Commit tee
But on construction of the building covering a portion of the municipal land the landlord became landlord and the appellant his tenant for the purposes of the Act
This view was held by the full Bench of the Punjab and Haryana High Court in Hari Parshad Gupta vs Jitender Kumar Kaushik 1982 Vol
84 Punjab Law Reporter 150
We agree with the view
Thereby though there is a notification issued by the State Government exempting the lands belonging to Gurgaon Municipality from the provisions of the Act the building of the respondent does not get exempted from the provisions of the Act
It is the finding of the forums below that the shop in question stands mainly on the land of the landlord and a small portion is located on municipal land
Therefore we are of the view that the building was governed by the provi sions of the Act and the exemption accorded by the Govern ment under Section 3 was not attracted to the premises
In Sadhu Singh vs District Board Gurdaspur  Anr 1962 Punjab Law Reporter Vol
64 1 the question was whether to the reconstructed building governed by the provisions of East Punjab Urban Rent Restriction Act the exemption under Section 3 applied
It was held to be so by the Division Bench
But the present facts are different
In Barrachlough vs Brown the House of Lords held that when a special statute gave a right and also provided a forum for adjudication of rights remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction
In Doe vs Bridges  at 859 the famous and oft quoted words of Lord Tenterdan occur Where an Act creates an obligation and en forces the performance in a specified manner we take it to be a general rule that perform ance cannot be enforced in any other manner This statement of law was approved not only by the House of Lords in several cases but also by this Court in Premier Automobiles vs KS Wadke  where this Court was called upon to consider whether the Civil Court can decide a dispute squarely coming 155 within the provisions of the Industrial Disputes Act
While considering that question this Court laid down four propo sitions and third of them is relevant for consideration here
It is as follows 3 If the industrial dispute relates to the enforcement of a fight or an obligation creat ed under the Act then the only remedy avail able to the suitor is to get an adjudication under the Act Thus on construction of relevant provisions of the Act and in the light of the position in law it must be held that the provisions of Section 13 of the Act applies to the building leased out to the appellant by the landlord and the Controller was the competent authority to pass a decree of ejectment against the appellant and the Civil Court lacked inherent jurisdiction to take cognisance of the cause and to pass a decree of ejectment therein
The next question is whether the impugned decree is a nullity and whether the plea can be raised in execution and further whether the decree in the suit does not operate as res judicata
In Kiran Singh  Ors
vs Chaman Paswan  Ors
   AIR 1954 SC 430 the facts were that the appellant had undervalued the suit at Rs2950 and laid it in the court of the Subordinate Judge Monghyr for recovery of possession of the suit lands and mesne profits
The suit was dismissed and on appeal it was confirmed
In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11
The value of the appeal was fixed at Rs9980
A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court but to the High Court and on that account the decree of the Dis trict Court was a nullity
Alternatively it was contended that it caused prejudice to the appellant
In considering that contention at page 121 a four Judge Bench of this Court speaking through Vankatarama Ayyar J held that It is a fundamental principle well estab lished that a decree passed by a Court without jurisdiction is a nullity and that its inva lidity 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 jurisdic tion whether it is pecuniary or territorial or whether it is in respect of the subject matter of the 156 action strikes at the every authority of the Court to pass any decree and such a defect cannot be cured even by consent of parties
If the question now under consideration fell to be determined only on the application of general principles governing the matter there can be no doubt that the District Court of Monghyr was coram non judice and that its judgment and decree would be nullities
 On merits it was held that since the appellant himself had invoked the jurisdiction of the Civil Court with under valuation the objection as to jurisdiction was not avail able by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of CPC and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act
This Court has held that it is a well established prin ciple that a decree passed by a court without jurisdiction is a nullity and the plea can be set up whenever and wherev er the decree is sought to be enforced or relied upon and even at the stage of execution or in collateral proceedings
In the case of Ferozi Lal Jain vs Man Mal  Anr AIR 1979 SC 794 the facts were that the appellant was the owner of a shop
One of the covenants under the lease was that the lessee respondent should not sub let the shop
On the ground that the respondent had sub let the shop a suit was laid for eviction under Section 13 of the Delhi and Ajmer Rent Control Act 1952
The matter was compromised and a compro mise decree was passed
Twice time was given for delivery of the vacant possession by the respondent
On his failure to deliver vacant possession the appellant filed execution to recover possession
The tenant raised the objection that unless any one of the grounds prescribed under Section 13 of the Rent Control Act was satisfied the decree even on compromise was a nullity and therefore he could not be evicted
This Court held that the order made did not show that it was satisfied that the sub letting complained of had taken place nor was there any other material on record to show that it was so satisfied
It is clear from the record that the Court had proceeded solely on the basis of the compromise arrived at between the parties
That being so there was hardly any doubt that the Court was not competent to pass the impugned decree
Hence the decree under execu tion must be held to be a nullity
On that basis it was held that the objection could be 157 raised even at the execution stage
Ultimately the decree was held to be void
In Bahadur Singh vs Muni Subrat Dass the decree under execution was made on the basis of an award and it was held that the decree was passed in contravention of section 131 of the Rent Control Act
Thereby the decree was held to be void and hence no execution could be levied on the basis of the void decree
A similar view was also taken by this Court in Smt
Kaushalya Devi  Ors
vs KL Bansal AIR 1970 SC 838
This was also a case under the Delhi and Ajmer Rent Control Act and was on the basis of a compromise
It was held that the decree passed on the basis of the award was in contravention of Section 131 of the Act as the Court had passed the decree without satisfying itself that any good ground of eviction existed
Therefore the decree for delivery of possession was held to be a nullity and could not be executed
This is also a decision by a Bench of three Judges speaking through Sikri J as he then was
In Chandrika Misir  Anr
vs Bhaiya Lal  Palekar J speaking for a Bench of two Judges held that the decree passed by the Civil Court in relation to matters governed by UP Zamindari Abolition and Land Reforms Rules 1952 for possession was a nullity and in the appeal it was for the first time permitted to be raised in this Court and the decree was declared to be a nullity
In Ledgard vs Bull 1886 Law Report 13 AC 134 the Privy Council laid down that where the original Court in a suit was inherently lacking jurisdiction and was incompe tent to try the same on its transfer by consent of parties to a Court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction
In Bartan vs Fincham 1921 2 Kings Bench Division 291 at 299 it was held that Parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have The Court cannot give effect to an agreement whether by way of compromise or otherwise inconsistent with the provisions of the Act
 In Peachery Property Corporation vs Robinson 1966 2 All Eng
158 Report 981 at 983 Winn Lord J took the same view
In Choudari Rama dead per LR Choudhary Ganapathi vs Qureshi Bee 1983 2 Andhra Law Times 133 one of us Ramas wamy J was called upon to consider the question on a set of similar facts
Therein the petitioner who died subse quently was protected under AP Telangana Area Tenancy and Agricultural Holdings Act 1950
The protected tenant was given possession in exercise of statutory power under Section 38 A of that Act
That was done during the pendency of the suit for partition between the co sharers
The tenant was impleaded co nominee defendant to the suit
A prelimi nary decree for partition and for possession was passed
A final decree followed
The decree became final and execution was levied for possession
Objection was taken that since the tenant was a protected tenant under the Act the decree was a nullity and could not be executed against the legal representatives
After considering the scope of relevant provisions of the Act it was held that the Civil Court cannot go into the legality or correctness of the Exhibit B I issued by the Tehsildar
The revenue authorities consti tuted under that Act were competent to go into the validity thereof
Civil Court inherently lacked jurisdiction and the decree of ejectment of the protected tenant from the lands covered by the protected tenancy was a nullity because of the provisions of Chapter IV of the Act
The plea can be set up even at the stage of execution as was rightly done in that case
Otherwise it would have the effect of nullifying the operation of the statutory provisions in Chapter IV of the Act and deprived the protected tenant of his vested interest in the land created in his favour under the tenancy certificate exhibit B I
It was also held in paragraph 64 that Its validity can be assailed in the execution proceedings
 We approve the view of the High Court
In Mathura Prasad Bajoo Jaiswal  Ors
vs Dossibai NB Jeejeebhey  the Bench consisting of Shah CJ Hegde and Grover JJ was called upon to consider whether a decree passed without jurisdiction operates res judicata
The facts therein were that the respondent leased out the land for construction of a building to the appel lant which was duly constructed
The tenant applied for fixation of the standard rent
The Civil Court rejected the prayer holding that the Bombay Rents Hotel and Lodging House Rates Control Act 1947 does not apply to the open land let out for construction
But later the High Court reversed that view in another decision and held that the Act applied to the open land leased out
Relying upon that judgment an application was again filed for fixation of the standard rent of the 159 premises
Objection was raised that the earlier rejection operated as res judicata
In that context in negating the contention this Court held that the doctrine of res judica ta belongs to the domain of procedure
It cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpreta tion of enactment affecting the jurisdiction of a Court finally between them even though no question of fact or mixed question of law and fact relating to the right in dispute between the parties has been determined thereby
A decision of a competent Court on a matter in issue may be res judicata in other proceedings between the same parties
The matter in issue may be an issue of fact
The fact decid ed by a competent Court is final determination between the parties and cannot be re opened between them in another proceeding
The previous decision on a matter in issue alone is res judicata
The reasons for the decision are not res judicata
A matter in issue between the parties is the right claimed by one party and denied by the other
The claim of right from its very nature depends upon proof of facts and application of the relevant law thereto
A pure question of law unrelated to facts which give rise to a right cannot be deemed to be a matter in issue
When it is said that a previous decision is res judicata it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties
A previous decision of a competent Court on facts which are the founda tion of the right and the relevant law applicable to the determination of the transactions which is the source of the right is res judicata
A previous decision on a matter in issue is a composite decision the decision of law cannot be dissociated from the decision on facts on which the right is founded
A decision on an issue of law will be res judicata in a subsequent proceeding if it be the same as in the previous proceeding but not when the cause of action is different nor when the law has since the earlier decision been altered by a competent authority nor when the decision relates to the jurisdiction of the Court to try the earlier suit nor when the earlier decision declares valid a transac tion which is prohibited by law A question of jurisdiction of the Court or of procedure or a pure question of law unre lated to the right of the parties to a previ ous suit is not res judicata in the subse quent suit
Rankin CJ observed in Tarini Charan Bhattacherjee s ILR case The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se but to ascertain their rights and 160 the facts upon which these rights directly and substantially depend and to prevent this ascertainment from becoming nugatory or pre cluding the parties from reopening or recon testing that which has been finally decided A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court
If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction the question would not in our judgment operate as res judicata
Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res judicata between the same parties whether the cause of action in the subsequent litiga tion is the same or otherwise Emphasis supplied In that case it was held that since it relates to the jurisdiction of the Court as per law declared by the legis lature it does not operate as res judicata
In Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman  Ors a Bench of three Judges of this Court consisting of Shah J as he then was Hegde and Grover JJ was considering the question of nullity of a decree
The facts therein were that the appellant owner of the plot of land leased out the same to the respondent at an annual rental of Rs411
The suit was dismissed and on appeal it was reversed and suit was decreed
On revision it was con firmed by the High Court
Special leave petition filed in this Court was also dismissed
In the execution the conten tion was raised that the Small Causes Court had no jurisdic tion to entertain the suit
It was contended that the decree was a nullity on the ground that Bombay Rents Hotel and Lodging House Rates Control Act 57 of 1947 applied to the facts in that case
In that context Shah J as he then was speaking for the Court held that challenge to a decree which is a nullity can be raised at any time but the Court executing the decree cannot go behind the decree between the parties or on their representation it cannot entertain any objection that the decree was incorrect in law or on facts unless it is set aside by an appropriate proceeding in appeal or revision
A decree even if it be erroneous is still binding between the parties
In that context it was held that the question whether the Court of Small Causes had jurisdiction to entertain the Suit depended upon 161 the interpretation of the terms of the agreement of lease and the use to which the land was put at the date of the grant of the lease
These questions cannot be permitted to be raised in an execution proceedings so as to displace the jurisdiction of the Court which passed the decree
It was further held that for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit it is necessary to determine facts relevant to the issue on which the question depends and the objection does not appear on the face of the record the executing Court cannot enter upon an enquiry into those facts
It is seen that on the facts in that case it is for the first time the executing Court is to adjudicate upon the terms of the lease whether the Court of Small Causes had jurisdiction to enter tain that suit
It is not a case of interpretation of the statutory provisions or inherent lack of jurisdiction
It is already seen that in fact for the first time this Court in Chandrika Misir s case supra had to go into the statutory provisions though no case in that regard had been set up in the courts below and held that the Civil Court lacked inher ent jurisdiction to pass the decree
Therefore the ratio in this case is not in conflict with the view taken by this Court
It is no doubt true that in Seth Hiralal Patni vs Sri Kali Nath  the facts were that the suit was instituted on the original side of the Bombay High Court against the appellant for recovery of certain arrears out of transactions taking place at Agra
The dispute was referred to arbitration
The arbitrator gave his award in favour of the respondent which was upheld on appeal by the High Court
In execution proceedings an objection was raised by the appellant that the Bombay High Court has no jurisdiction to entertain the suit to make the award a decree of the Court as no part of the cause of action had arisen within its territorial jurisdiction
Therefore the decree was without jurisdiction
It was held that since the parties had agreed to refer the matter to arbitration through Court which had jurisdiction he would be deemed to have waived the objec tion as to the territorial jurisdiction of the Court
There fore it is not a nullity and the appellant was held to be estopped from challenging the jurisdiction of the Bombay High Court
The ratio therein does not apply to the facts of this case
The case of Phool Chand Sharma  Ors
vs Chandra Shanker Pathak  Ors 828 also does not help the respondent
It was a case where the suit was decreed and possession was taken thereunder
On appeal by the respondent it was dismissed
On Second Appeal before the Board of Revenue the matter was com 162 promised whereunder Ramprasad was recognised as a tenant of the land in dispute and the order of eviction was thus nullified
When he made an application under Sec
144 CPC for restitution it was resisted by the tenants subsequently inducted on the ground that the respondent was inducted as tenant by the decreeholder and the decree does not bind them
This was upheld by the trial court and on appeal
A writ petition was also dismissed on merits
The decree became final
The order of the High Court under article 227 became final
Then against the order of the Board of Revenue an appeal under article 136 was filed in this Court
A prelimi nary objection was raised that the decision of the High Court under article 227 operated as res judicata
In that context it was held by this Court that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings
The facts are clearly distinguishable
The case of Mohanlal Goenka vs Benoy Krishna Mukherjee  Ors  is also of little assistance to the respondent
The decree passed by the Calcutta High Court on its original side was transferred for execution to the Court of Subordinate Judge of Asansol with proper certified copy of the decree and order of transmission
The execution application was dismissed for default and a certificate was sent under Sec
41 CPC stating that the execution case was dismissed for default without transmitting the decree or the covering letter sent by the High Court
The decree holder again applied for execution
It was accordingly executed
Then an application to set aside the sale was made under Order 21 Rule 90 CPC on the ground that the decree is a nullity and the Court had no jurisdiction to execute the decree
While negating the contention it was held that since the decree sent was not transmitted it would be re garded as a fresh application for execution and therefore the executing Court had jurisdiction and the decree was not a nullity
That case also is not one of inherent lack of jurisdiction
Thus it is settled law that normally a decree passed by a Court of competent jurisdiction after adjudication on merits of the rights of the parties operates as res judica ta in a subsequent suit or proceedings and binds the parties or the persons claiming right title or interest from the parties
Its validity should be assailed only in an appeal or revision as the case may be
In subsequent proceedings its validity cannot be questioned
A decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction lacks inherent jurisdiction
It is a corum non 163 judice
A decree passed by such a Court is a nullity and is non est
Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in collateral proceedings
The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party
If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority such a defect like pecuniary or territorial could be waived by the party
They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums provided law permits
The doctrine of res judicata under Sec
11 CPC is founded on public policy
An issue of fact or law or mixed question of fact and law which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them
Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them
But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them
The reason is obvi ous a pure question of a law unrelated to facts which are the basis or foundation of a right cannot be deemed to be a matter in issue
The principle of res judicata is a facet of procedure but not of substantive law
The decision on an issue of law founded on fact in issue would operate as res judicata
But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibi tion by law it does not operate as res judicata
Thus a question of jurisdiction of a Court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit is not res judicata in the subsequent suit
A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally deter mined by an erroneous decision of a Court
Therefore the doctrine of res judicata does not apply to a case of decree of nullity
If the Court inherently lacks jurisdiction consent cannot confer jurisdiction
Where certain statutory rights in a welfare legislation are created the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction
In the light of this position in law the question for determination is whether the impugned decree of the Civil Court can be assailed by 164 the appellant in execution
It is already held that it is the Controller under the Act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord
Thereby the Civil Court inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment
Therefore though the decree was passed and the jurisdiction of the Court was gone into in issue Nos 4 and 5 at the ex parte trial the decree there under is a nullity and does not bind the appellant
There fore it does not operate as a res judicata
The Courts below have committed grave error of law in holding that the decree in the suit operated as res judicata and the appel lant cannot raise the same point once again at the execu tion
It is seen from the dates mentioned that there is no delay in filing the leave application
The leave application was filed within the limitation from the date of original order of dismissal of the revision or on a later date dis missing the review application
It is true that the writ petition was filed against the order in revision but it does not preclude the appellant to contest its invalidity in the appeal under article 136
The decree was executed pending the special leave petition
This Court would relieve the party from injustice in exercise of power under article 136 of the Constitution when this Court notice grave miscarriage of justice
It is always open to the appellant to take aid of Sec
144 CPC for restitution
Therefore merely because the decree has been executed on the facts when we find that decree is a nullity we cannot decline to exercise our power under article 136 to set at nought illegal orders under a decree of nullity
The appeal is accordingly allowed
But in the circumstances parties are directed to bear their own costs
Y Lal Appeal allowed


Summary:
The Official Liquidator got a complaint under sections 120 B 406 467 and 477A Indian Penal Code filed before the Presidency Magistrate against the appellants one of whom was a past director and the other the Managing Director of the Bank of Commerce Ltd which was in compulsory liquidation
The appellants applied to the Presidency Magistrate for dismissal of tile complaint on the ground that the Official Liquidator was incompetent to prefer the complaint as there was no sanction of the Company judge
This was dismissed
The appellants then applied to the High Court for quashing the criminal proceedings on the ground that the prosecution was ab initio void because of the absence of a prior direction judicially given by the High Court under section 2371 of the Indian Companies Act
The High Court rejected the application
Held that a direction of the Court under section 2371 of the Indian Companies Act was not a condition precedent to the prosecution of the appellants by the Official Liquidator
In fact a valid and proper direction had been given by the Court under section 2371 to the Official Liquidator for the prosecution of the appellants
In giving a direction under this section the Court could act ex parte and it was not necessary to give to the appellants any opportunity of being heard
Section I79 Of the Companies Act deals with the powers of liquidators to institute or defend legal proceedings with the sanction of the Court and section 2391 deals with the powers of the Court to give directions for prosecution of delinquent directors etc
In the present case the Court had made an order under section I79 giving liberty to the Official Liquidator to institute or defend legal proceedings and the Official Liquidator was entitled to lodge the complaint against the appellants even without a direction under section 2371