1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4965 OF 2008 Smt.Savitribai A. Salvi .. Petitioner Versus Smt.Suman Navgire & Ors. .. Respondents ========== Mr.Shriram Kulkarni for petitioner Mr.D.M.Gupte for Respondent No.1, 2(A) to 2(D) (decree holders) CORAM :S.C.DHARMADHIKARI, J. JUDGEMENT RESERVED ON: 21ST APRIL 2009 JUDGEMENT PRONOUNCED ON 12th June 2009 ORAL JUDGEMENT: 1] While issuing Notice on 13th January 2009 this Court directed that the matter would be listed for Final Disposal. Accordingly, by consent I have heard final arguments of parties. Hence, Rule. Respondent Nos. 1 and 2A to 2D waive service. 2] By this petition under Article 227 of the Constitution of India, the Petitioner challenges the order dated 12th June 2008 in Civil Appeal No.586 of 2007. The learned Dist.Judge - 12, Pune dismissed this appeal and confirmed the order of the Executing Court 2 dated 16th August 2007 below Exh.37 in pending Darkhast No.82 of 2000. This is the second time when the petitioner has approached this Court in writ jurisdiction. 3] The petitioner has suffered a Decree of Eviction in respect of an Immovable property and when the said decree was put in Execution by the Decree Holder/Respondents, he raised an objection to its enforceability and executability on the ground that the decree is null and void. That objection was overruled by the executing court and the appeal therefrom has also been dismissed. Consequently, this petition. 4] The opportunity to raise objections to the decree was given by an order of this Court dated 13th April 2007 in Civil Writ Petition no.481 of 2007. The said order reads thus:- 1. This Writ Petition filed under Article 227 of the Constitution arises from an interlocutory order passed by the learned Judge of the Second Small Causes Court at Pune on 2.8.2000. It appears that the possession warrant was issued in Darkhast No.82 of 2000 and thereafter the present petitioners filed application at 3 Exhibit-22 praying for stay to the execution proceedings. The said application has been rejected by the impugned order and on the ground that the total amount of Rs. 5,100/- was not deposited by the judgment debtor by 2.7.1999 or by 9.7.1999 as the case may be and even though in the application submitted on 9.7.1999, a weeks time was prayed for to deposit the balance amount of Rs.600/-, the amount was ultimately deposited on 20.7.1999. The court below therefore relied upon the decision in the case of Sonusingh V/s.Bansi Chindu (1994 Maharashtra Law Journal 1141) and rejected the application by the impugned order. . The impugned order was initially challenged by filing a Civil Revision Application i.e. CRA No.1103 of 2000 and on 21.11.2000 the impugned order was stayed. The CRA was dismissed on 7.12.2006 with an observation that the CRA was not maintainable against the impugned order and therefore it was disposed with liberty to take out appropriate proceedings and that 4 is how this petition has been moved subsequently. . The fact remains that the impugned order has remained stayed all along and there is no reason why the execution proceedings should not proceed further. At the same time it is not known whether the petitioners have remitted the rental amount during the last seven years or so and these are all the issues which the execution court can consider. Under these circumstances, there is no necessity to keep this petition pending any further. . Hence, the Writ Petition is disposed off by directing the Darkhast No. 82 of 2000 to be heard and decided expeditiously. In case, the petitioners desire to apply for stay to the possession warrant, Such an application can be considered more appropriately by the executing court, if the same is filed within a period of one week from today and providing all the other details. Petition is disposed off accordingly. 5 5] Pursuant to the liberty granted to apply for stay of possession warrant, the petitioner who is one of the Judgment debtors along with others, filed written objections vide Exh.37. A copy of the same is annexed as Annexure F to this petition. 6] It was the case of the petitioner that the Civil Suit No.644 of 1997 was filed on 20th September 1997 by respondent Nos. 1 and 2, seeking possession of one room more particularly described in para 1 of the plaint situate at village Warje (hereinafter referred to as suit premises). It is common ground that the suit was filed for recovery of possession and arrears of rent and it came to be filed in the Court of Small Causes. During the pendency of this suit, original defendant - tenant expired and in his place heirs were brought on record. However, the heirs did not participate in the trial. After considering oral and documentary evidence led by respondent Nos. 1 and 2  original plaintiffs, the executing court passed a conditional decree against the heirs of the original tenant/ defendant directing them to deposit Rs.5100/- within thirty days from the date of the order together with interest at the rate of 6% p.a. Upon default in depositing the amount within the stipulated time, eviction decree was to follow. The record indicates that the original Judgement Debtor 6 failed to comply with the directions of the court and did not deposit the amount with interest within time. Therefore, the decree holders filed Execution Application on 28th February 2000. In the meantime, the Judgment debtors filed objections to the execution of the decree (Exh.22) praying for recalling the warrant of possession and staying the execution proceedings contending that they have deposited entire arrears of Rs.4125/- in two instalments dated 9th July 1999 and 20th July 1999 and thereby complied with the directions of the court. However, that application Exh.22 was dismissed by the learned Second Additional Judge, Small Causes Court, Pune by an order dated 2nd August 2000. It was this order which was challenged by filing a Civil Revision Application in this Court and the same was disposed of with the above directions. 7] In the fresh set of objections, apart from urging that the amount has been deposited, it was contended by the petitioner that the Small Causes Court was not empowered to entertain the suit filed by the original plaintiffs  decree holders. It was contended that the plaintiffs were conscious of the position in law and had indeed averred in para 9 of the plaint that the Rent Control Act was not applicable to the suit premises. The suit had been filed invoking provisions 7 of Transfer of Property Act, 1882. Various other objections were also raised in the objections filed on 19th April 2007. These objections were placed before the Executing Court and the Executing Court after hearing both sides held that it cannot go behind the decree. The suit was filed for recovery of rent and possession. The Rent Control Act was not applicable was the averment. The suit was contested by the original defendant but he passed away The legal representatives were brought on record but they were proceeded ex-parte. The Executing Court held that the objections raised now were was not raised during the course of trial. The decree is specific and conditional. The judgment debtor was directed to deposit the rent within the prescribed time and was aware of the consequences in default. No doubt, in operative para of the order, section 12 of the Rent Control Act is mentioned, but that would not invalidate the decree. The Small Causes Court had jurisdiction to entertain and try the suit. In such circumstances, the objections were held to be untenable and came to be rejected. Aggrieved by the order of the executing court, an Appeal came to be preferred and by the impugned order the same has been dismissed. 8] These orders are under challenge in the instant 8 petition. 9] Mr.Kulkarni, learned Counsel for the petitioner contended that the subject decree is a nullity. He submits that the attention of the Court below was invited to section 26 of the Provincial Small Causes Court Act, 1887 and more particularly sub- section 2 thereof. The Small Causes Court lacked inherent jurisdiction to entertain and try a suit pertaining to the premises to which the Rent control Act is applicable. The competent Court to take cognizance of and entertain to try the suits under Bombay Rent Control Act is the one specified by Section 28 thereof. The Court of Small Causes has no jurisdiction to entertain and try the suit. He contended that the decree mentions provisions of Rent Control Act and thus the executing court was aware of the fact that the Rent Control Act is applicable to the suit premises. In any event, the Rent Control Act became applicable during the pendency of the suit and once it became so applicable, then, the Small Causes Court could not have decreed the claim on the basis that the applicable law is the Transfer of Property Act. In such circumstances, the orders passed by the Court below are vitiated by an error apparent on the face of the record and, therefore, deserve to be 9 quashed and set aside. 10] In support of his submissions and also while urging that these objections go to the root of the matter and the decree is a nullity, Mr.Kulkarni relies upon the following decisions:- (a) (2007) 8 S.C.C. 559 (Carona Ltd. Vs. Parvathy Swaminathan & Sons) (b) 1962 SCR 159 (Shah Bhojraj Kuverji Oil Mills & Ginning Factory Vs. Subbash Chandra Yograj Sinha) (c) (1985) 1 S.C.C. 270 (Lakshmi Narayan Guin and Ors. Vs. Niranjan Modak) (d)2006 (5) Mh.L.J. 651 (Shantabai Yashwant Kothare & Ors. Vs. Shankar Parshuram Naik (D) through L.rs.) (e) A.I.R. 1984 Gujarat 182 (Govindbhai Parshottamdas Patel and Ors. Vs. New Shorrock Mills Nadiad) (f) A.I.R. 1964 S.C. 1348 (Raizada Topandas Vs. M/s.Gorakhram Gokalchand) (f) (2003) 4 S.C.C. 147 (Sarwan Kumar and Anr. Vs.Madan Lal Aggarwal) (g) (1991) 1 S.C.C. 494 (Isabella Johnson (Smt) Vs. M.A.Susai (D) by Lrs.) (h) A.I.R. 1970 S.C. 1475 (Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Ors.) 10 11] On the other hand, Mr.Gupte learned Counsel appearing for the decree holders contended that the Provincial Small Causes Court Act was not lacking in inherent jurisdiction while it decreed the suit. He invited my attention to the fact that the Provincial Small Causes Court Act was competent under both enactments viz., Bombay Rent Control Act and Transfer of Property Act to entertain and try the suits for possession. In other words, wherever the Rent Control Legislation was applicable in terms of Section 28 thereof, competent court was the provincial small causes court. Thus, assuming without admitting that the Rent Control Act was applicable to the suit premises, the suit could have been laid in the Provincial Small Causes Court itself. Therefore, there is no substance in the objections in that behalf. He has invited my attention to para 26 of the order passed by the lower appellate court and also the order of this Court. He submits that these are only delaying tactics and the judgment debtors are not interested in handing over possession, despite the decree becoming final. 12] Mr.Gupte has invited my attention to the earlier order i.e the order in W.P.No.481 of 2007 and contended that assuming that the issue of jurisdiction of the trial court could have been raised in the execution 11 proceedings, yet, that issue or point is not something which can be decided by referring to the decree. In other words, that is not an objection apparent on the face of the record. It is an objection which requires detailed investigation on facts. The Executing Court was called upon to go into the issue as to whether when the suit was instituted the Rent Control Act was applicable to the area where the suit premises are situated. Assuming further that the suit premises came within the Municipal limits/ Area and, therefore, Rent Control Legislation had become applicable thereto, even then, the Executing Court would have to go through the Relevant Notifications and construe them. They cannot be brought on record of the Executing Court by leading Oral and Documentary Evidence. That means an issue which could be tried as a jurisdictional issue during the course of trial would be required to be tried during Execution and that is not what is intended by the opportunity in Law to raise objections to the executability and enforceability of the decree. If the defect in the Decree is not apparent and it requires detailed investigation of facts, then, the Executing court was not obliged to take cognizance of this objection and it has been rightly overruled. This order being maintained by the lower appellate court 12 means that it committed no error in law. Therefore, the orders passed by the court below are justified on facts and in law. They do not suffer from any Jurisdictional error nor vitiated otherwise so as to call for interference in this Court s limited jurisdiction under Article 227 of the Constitution of India. Hence the petition be dismissed. 13] With the able assistance of learned Counsel for parties I have perused the petition and the Annexures thereto including the Impugned orders. I have also perused the relevant decisions brought to my notice and the statutory provisions. 14] At the outset, it must be borne in mind that the jurisdiction under section 47 of the C.P.C. conferred on the Executing court is limited and narrow. The liberty to object to the executability and enforceability of a decree by raising objections before the executing court, does not mean that the objector can re-open the matter and the proceedings. That is not intended by the Legislature. He is not permitted to urge such pleas and matters which would require re- opening of the decree on concluded issues. In other words, this jurisdiction cannot be equated with that of an Appeal or Review. It being extremely limited and narrow, the objections must fall within the ambit and 13 scope of the same. If they fall outside the purview of the said limited power, then, the executing court is not empowered to take note of them. 15] If any authority is needed for this purpose, then, a reference can usefully be made to a decision of the Supreme Court in the case of Dhurander Prasad Singh Vs. Jaiprakash reported in (2001) 6 S.C.C. 534. Therein, the Supreme Court observed that the powers of the Court under section 47 are quite different and much narrower than its powers of appeal, revision or review. Exercise of powers under section 7 of the Code is microscopic and lies in a very narrow inspection hole. 16] Taking this view a little further, in a later decision of the Supreme Court reported in A.I.R. 2003 S.C. 3789 (Rafique Bibi (D) By L.rs. Vs. Sayed Waliuddin (D) by L.Rs. And Ors.), the Supreme Court held that when the objection is raised to the execution of the decree on the ground that it is passed without jurisdiction and is a nullity, then, that objection must be such as could be determined by looking at the decree itself. In other words, it must be patent on its face. In this context, this is what the Supreme Court observes: 6. What is void has to be clearly 14 understood. A decree can be said to be without jurisdiction, and hence a 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 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 nullity based on want of jurisdiction; else the normal rule that an executing Court cannot go behind the decree must prevail . 7. Two things must be clearly borne in mind. Firstly, the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a nullity and void but these terms have no absolute sense; their meaning is relative, depending upon the Court s willingness to grant relief in any particular situation. 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 15 applied, would produce unacceptable results. (Administrative Law, 8th Edn. 2000, Wade and Forsyth, 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 16 decree is to have it set aside in a duly constituted legal proceedings or by a superior Court falling 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. 9. In Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and Ors. (1970) 1 SCC 670, it has been held:- When the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. 17] The controversy before me will have to be decided 17 on the touch stone of these principles. When the matter was brought before this Court earlier, the aspect of the jurisdiction of the trial court to entertain and try the suit and pass a decree of eviction has not been specifically raised. From a reading of the order dated 13th April 2007, which is reproduced above, it is apparent to me that the only argument raised before this Court was that the pre- condition of deposit in the decree has been complied with and, therefore, the decree holders cannot dispossess the judgment debtors. In other words, the deposit of Rs.5125/- being made within the time stipulated and permitted by the Court, no default arises and consequently there is no obligation to hand over possession. Hence, there is no question of executing the decree of the Trial Court. Therefore, no possession warrant can be issued. That was the only argument which was raised. While dealing with the same, this Court observed that the execution and enforcement of the decree had been stayed because a revision application challenging the order below Exh22 of the Executing Court was pending in this Court for nearly six and half years. In such circumstances and when the judgment debtors are contending that they have complied with the order of deposit, then, he must have 18 an opportunity to make good that plea. That is how, executing court s earlier order was set aside and liberty was granted to the petitioners before me and respondent Nos. 3, 4 and 5 (all judgment debtors) to apply for stay of the possession warrant. Thus, there is no question of the court being called upon to decide all the objections that have been now raised before me. 18] That apart, in the application at Exh.37, the plea that the decree is a nullity is not raised in the manner now canvassed before me. A perusal of the entire application leaves me in no manner of doubt that the plea by Mr.Kulkarni as raised before me has no where been stated. All that has been urged is that because the decree makes a reference to section 12 of the Bombay Rent Act and the area of Warje Gram Panchayat now being br0ught within the limits of Pune Municipal Corporation, the trial court does not have any jurisdiction to try the suit. The precise objection in that behalf reads thus:- 3. These J.Ds. - L.rs. Of the original defendant herewith submit that the very suit as filed by the plaintiffs as without jurisdiction of the Hon ble Court at the time when the suit was filed and the Court 19 of Small Causes, Pune was not entitled to entertain or decree the suit and as such the very institution of the suit before the Hon ble Court of Small Causes, Pune was not only illegal but furthermore the Court had no jurisdicion to entertain the suit. It is emphasised herewith that the plaintiffs were conscious of the said position of law and therefore had specifically so pleaded in the plaint in para (9) that the Rent Control Act was not applicable to the area of the suit propety and in the circumstances the suit had been averred to have been filed under the provisions of the Transfer of Property Act. Such suit without the provisions of the Rent Control Act could not have been treated and cannot be treated to be any suit within the jurisdiction of the Hon ble Court under the provisions of the Bombay Rent Act as the said Bombay Rent Act or any Rent Control Legislation was not at all applicable to confer jurisdiction upon this Hon ble Court so as to have any decree by the Court of Small Causes with regard to possession 20 against the present J.Ds. It is herewith submitted that during the life time of the late Arun the suit was not maintainable and on his demise the litigation legally and technically came to an end before the Court which had no jurisdiction in the matter of the said suit and as such by merely bringing the L.Rs. Of the late Arun, the present J.Ds. Cannot be clampped with the void and ultra-vires decree in the matterr. In fact the void proceedings cannot be validated by bringing the J.Ds. On record as L.Rs. Of the late Arun and in the circumstances the alleged decree under exection is ab-initio void as the same is superimposed on the void proceedings initiated without jurisdiction to the Hon ble Court and cannot be ended in any kind of valid or executable decree in the matter and the decree therefore, is ultra- vires and inexecutable and the same cannot be executed against the J.Ds. In any way. 5. The very decree is making a reference to the claim for possession as being decreed under Section 12 of the Bombay Rent 21 Act and atleast when the very suit was not under the provisions of the Bombay Rent Act. Further the absence of jurisdiction to the Hon ble Court in the original suit cannot be regarded to be retrospectively conferred upon the Hon ble Court so as to have any jurisdiction to pass the decree in a suit not instituted under the provisions of the Bombay Rent Act and in the circumstances the very decree is suffering from inherent lack of jurisdiction. 6. It is herewith submitted