-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.8891 of 2007 Balasaheb Ganpat Jadhav ..Petitioner vs. Vijaykumar Manohar Deshpande ..Respondent Shri K.K.Malpathak for petritioner. Shri D.Lonkar for respondent. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 29th January, 2008 29th January, 2008 29th January, 2008 P.C. P.C. P.C. 1. By this petition under Article 227 of the petitioner challenges the order of the Executing Court refusing to uphold the plea that the decree in question is a nullity. 2. It is undisputed before me that the petitioner is a judgment debtor. It is undisputed further that the respondent/decree holder filed a civil suit being Reg.Civil Suit No. 1299 of 1992 for possession and recovery of licence fee. That suit was decreed on 29th July, 1999. The judgment and decree was confirmed in First Appeal No.663 of 1999 on 31st December, 2001 and in second appeal being second Appeal no.223 of 2001 by this Court on 17th September, 2002. -2- 3. It is contended that all objections to the execution of the decree might have been turned down but the one regarding jurisdiction of the Court to pass a decree in favour of the Decree holder goes to the root of the matter. It is contended that Provincial Small Causes Courts Act so also the Bombay Rent Act would be applicable to the premises and governs the relationship between the parties. It is only the Courts which are stipulated under the said Acts which can take cognisance of the grievance raised by the respondent/decree holder. It is not permissible for any other Court to pass a decree when the relationship is of licensor and licensee. In such circumstances and considering the provisions of these enactments, that the decree is passed by a Court which lacks inherent jurisdiction and, therefore, the same is a nully and is not executable. 4. The Executing Court has refused to accept these pleas not just because they have been raised belatedly and because of the conduct of the petitioner/judgment debtor but it observed that the objection to the jurisdiction of the civil court was raised on number of occasions. Firstly, it is undisputed that during trial of -3- the suit, a request was made to frame the preliminary issue of jurisdiction. That was decided by the Trial Court in favour of the decree holder and that order is dated 16th April, 1998. The decree was passed and decree came to be challenged. The lower Appellate Court dismissed the First Appeal and thereafter the second appeal was preferred before this Court. In the second appeal also the contention was raised that the Civil Court has no jurisdiction to entertain and try the suit. The suit premises belong to the State Government/Maharashtra Housing and Area Development Authority. Therefore, only the Competent Authority thereunder was empowered to evict the petitioner from the suit premises. This Court has considered this submission and ultimately came to the conclusion that the decree was validly passed. It adverted to the provisions of the Maharashtra Housing and Area Development Act. Now, it is contended that the petitioner occupied the premises as a licensee and, therefore, the decree holder is a licensor. Hence, the civil court has no jurisdiction. 5. Thereafter, several applications were preferred during the course of execution and all -4- were rejected. One more attempt to defeat the execution process has been made by preferring the subject application. 6. In my view, in the peculiar facts of this case, the Executing Court was right in taking the view that the bar to the execution of the decree on the ground that the same is a nullity is an aspect fully covered by the order passed earlier in the suit. The issue of jurisdiction and competence of the civil court was raised during the course of trial, in First Appeal and second appeal. Merely because another argument on the same aspect is sought to be projected does not mean that the decree can be reopened at the instance of a Judgment debtor like the petitioner. It is not as if the petitioner did not have an opportunity to raise the pleas on jurisdiction of the civil court. They have been raised and turned down repeatedly. Now, some additional legal provisions were put in issue and competence of the civil court is questioned. The Hon’ble Supreme Court has held that in such cases the plea of nullity cannot be raised. In Balavant N.Viswamitra and others Vs. Yadav Sadashiv Mule (deceased by L.Rs) and others reported in A.I.R.2004 S.C.4377, at page 4380, -5- the Supreme Court observes thus: "12. In Vasudeo Dhanjibhai Modis V.Rajabhai Abdul Rehman and ors. (1971)1 SCR 66, a decree for possession was passed by the Court of Small Causes which was confirmed in appeal as well as in revision. In execution proceedings, it was contended that the Small Causes Court had no jurisdiction to pass the decree and, hence it was a nullity. Rejecting the contention, this Court stated: "A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on fact. Until 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." "13. Suffice it to say that recently a -6- bench of two Judges of this Court has considered the distinction between null and void decree and illegal decree in Rafique Bibi and Sayed Waluddin, (2004)1 SCC 287). One of us (R.C.Lahoti J. as His Lordship then was), quoting with approval the law laid down in Vasudev Dhanjibhai Modi, stated: "What is "void" has to be clearly understood. A decree can be said to be without jurisdiction and hence as nullity if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. Two things must be clearly borne in mind. Firstly, the Court will -7- invalidate an order only if the right remedy is sought bythe right person in the right proceedings and circumstances. The order may be a "a nullity" and ’void’ but these terms have no absolute sense; their meaning is relative, depending upon any particular lsituation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results (Administrative Law. Wade and Florsyth, 8th Edn.,2000 P.308), Secondly, there is a distinction between mere administrative orders and the decrees of Courts, especially a superior Court. The order of a superior Court such as the High Court must always be obeyed no matter what flaws it may be thought to contain. Thus, a party who disobeys a High Court injunction is punishable for contempt of Court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time limit. (ibid...p.312) -8- A distinction exists between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the Court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of the decree. A decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings. 14. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarilly null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral -9- proceedings." 7. In the peculiar facts of this case and considering that the decree could not be executed for more than 8 years, the Executing Court was right in rejecting the objections. There is no reason to interfere with the said finding in the extra ordinary, equitable and discretionary jurisdiction of this Court. The petition is dismissed. The decisions cited by Shri Malpathak would not be applicable in the facts of this case. In Sarwan Kumar and another Vs. Madan Lal Aggarwal (2003) 4 Supreme Court Casess, 147), the judgment debtors had not filed their written statement. No issue regarding jurisdiction of the civil Court was framed. Further, the Supreme Csourt had earlier granted liberty to raise the issue of jurisdiction of civil Court. As regards the other judgment, the interpretation of Sec.41(1) of the Presidency Small Causes Court Act, 1882 is clear. 8. At this stage Shri Malpathak prays that stay granted by this Court to the execution be continued for a period of 8 weeks to enable the petitioner to challenge this order. Shri Lonkar opposes the prayer. -10- 9. In my view, in the light of the observations of the Executing Court on number of occasions and attempts made to defeat the execution of the decree, prayer made by Shri Malpathak cannot be granted. Hence, prayer for stay is rejected. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)