SUMAN v. VITHAL RAMA POWAR — 1986 DIGILAW 278 (KAR)

KULKARNI, J. ( 1 ) THIS is a revision by the Decree- holder against the order dated 6-2-1985 passed by the Prl. Munsiff, Chikodi in Ex. petition No. 20/84 directing the Decree-Holder to hand over possession of the suit property to the Judgment-Debtors (JDrs. ' for short ). ( 2 ) THE Decree-Holder filed a suit against the JDrs. in O. S. 217/79 for possession of the premises situate in chikodi alleging that the JDrs. were tenants under her and that the tenancy had been terminated by her. The decree ordering eviction of the JDrs was passed in the said suit on 28-8-82. The jdrs , being aggrieved by the said judgment and decree, filed an appeal in R. A. 44/82 on the file of the Civil Judge, chikodi. The Civil Judge, Chikodi, dismissed the appeal on 16-8-1983 and thereby confirmed the decree of eviction passed by the Munsiff. ( 3 ) THE JDrs. approached this court in RSA 214/84. The said second appeal was dismissed by this court on 3-4-1984 at the stage of admission itself. ( 4 ) THEREAFTER the Decree-Holder sued out the execution in Ex. 20/84 and obtained an order for delivery of possession of the property to her. In pursuance or the order passed by the executing court, it appears that the Amin of the court handed over possession of the property to the Decree-Holder. ( 5 ) THE JDrs. filed an application i. A. 2 under Order 37 Rule 1 read with section 47 and Section 151 C. P. C. alleging that the court of the Civil Judge which was the lower appellate court, had no jurisdiction at ail to pass an order of eviction because the provisions of the karnataka Rent Control Act were made applicable to Chikodi Town with effect from 31-12-1982. They alleged that on account of the application of the provisions of the Rent Control Act to Chikodi town, the Civil Judge who constituted the lower appellate court, had ceased to have any jurisdiction to pass or affirm the decree of eviction. They further urged that this court had no jurisdiction on 3-4-84, when R. S. A. 214/84 came before it, to dismiss the appeal at the stage of admission. They further urged that this court had no jurisdiction on 3-4-84, when R. S. A. 214/84 came before it, to dismiss the appeal at the stage of admission. They contended that it was a case of want of inherent jurisdiction and, therefore, any decree passed by a court suffering from what of inherent jurisdiction, is void abinitio and it cannot be executed. ( 6 ) THEREAFTER when I. A. 2 filed by the JDrs was pending, the Decree-Holder in a very shrewd manner filed a memo stating that the decree had been satisfied and the satisfaction may be entered. It was also objected by the JDrs. contending that their application I. A. 2 related to the discharge, satisfaction and execution of the decree and that, therefore, the memo should not be accepted. The Mu, siff lejected the contentions raised by the Decree-Holder and ordered the redelivery of the property to the jdrs. This order is challenged by the decree-Holder in this revision. ( 7 ) THAT the provisions of the Rent control Act were made applicable to chikodi Town with effect from 31-12-1982, is not in dispute. The provisions of the Rent Control Act make it abundantly clear that it is only the court constituted under the Karnataka Rent control act that could entertain a petition for eviction under Section 21 of the Act. Thus, the provisions of the Rent Control act oust the jurisdiction of the ordinary civil courts in matters of eviction governed by the Rent Control Act. Thus on account of the extension of the provisions of the Rent Control Act to Chikodi Town with effect from31-12-1982, the jurisdiction of the ordinary civil court to order eviction in respect of a premises situate in Chikodi was taken away. Therefore, the Civil Court at chikodi had no jurisdiction at all to pass an order of eviction in respect of premises situate at Chikodi, with effect from 31-12-1982. ( 8 ) R. A. 44/82 was disposed of by the court of Civil Judge on 16-8-1983 i. e. , long after the provisions of the rent Control Aet were made applicable to Chikodi Town. ( 9 ) IN Uttam Veranekar v Shattu laxman Donkari, ILR 1986 Kar. 1162, this court held :"in order to make the pending proceedings legal it was stated by the legislature that the Amendment Act came into force on 31-12-82. ( 9 ) IN Uttam Veranekar v Shattu laxman Donkari, ILR 1986 Kar. 1162, this court held :"in order to make the pending proceedings legal it was stated by the legislature that the Amendment Act came into force on 31-12-82. Therefore, the mention that the Act shall be deemed to have come into force on 31-12-1982 will not make the Act effective only from 31-12-1982. The substitution of the schedules shall be taken as though the schedules were in existence from the very inception of the Act. Once Section 4 speaks about substitution the said substitution shall be deemed to be on the anvil of the act since the coming into force of the very Act itself. It is undisputed that as per the schedules not substituted, angol comes within the limits of the belgaum City Corporation. Therefore, the provisions of the Rent Control Act are applicable. "this Court further held:"there is no question of a right vested in the party in view of the simple principle of law that the matter will be governed by the law as it stands when the. matter comes up for final disposal of the Court. The law that is applicable today is the law mentioned in the Karnataka Rent Control Act as amended by Act No. 17 of 1983. This Court, while laying down the said principle, has referred to and followed the principles laid down in Ram singha v Shankar Daya, AIR 7928 All 437, Lakshmi Narayan Gujn v Niranjan, air 1985 SC 111 , Shamarao v District magistrate, 1952 SCR 683 , Doddannavar bros, v Matathi Bai, ILR 1985 Kar. 3025 and Sadiq Sab v Akhilandamma, ILR 1985 Kar. 1737. The Supreme Court has held in the said Lakshminarayan's case as :"where the decree for eviction is passed by the trial Court against the tenant under the provisions of the t. P. Act and the statute giving protection to tenant against eviction is extended to the concerned area during pendency of appeal against the decree for eviction, the appellate Court is bound to take into account the change of law and to extend its benefit to the tenant and consequently to set aside the decree of the trial Court and dismiss the suit. A change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties. A change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties. The word "decree" occuring in S. 13 (1) of the Act does not refer to the decree of the trial court or, where an appeal has been preferred, to the appellate decree. Plainly, reference is intended to the decree which disposes of the suit finally. It is well settled that when a trial Court decrees a suit and the decree is challenged by a competent appeal, the appeal is considered as a continuation of the suit, and when the appellate decree affirms, modifies or reverses the decree on merits, the trial court decree is said in law to merge in the appellate decree, and it is the appellate decree which rules. The object of sub-sec. (1) of s. 13 is to protect the possession of the tenant, subject to the exceptions specified in the sub-section and that protection is ensured if the sub-sec, is construed to mean that, subject to those exceptions, no effective or operative order or decree can be made by the Court in a landlord's suit for possession against a tenant. Therefore, sub-sec. (1) of S. 13 of the Act can be invoked by a tenant during the pendency of an appeal against a trial court decree. "supreme Court has further stated as:"sub-SEC. (1) of S. 13 directs the court not to make any order or decree for possession subject, of course, to the statutory exceptions. The legislative command in effect deprives the court of its unqualified jurisdiction to make such order or decree. It may be that when the suit was instituted the court possessed the jurisdiction and could pass a decree for possession. But it is divested of that jurisdiction when the Act is brought into force in a particular area. The language of the sub-section makes that abundantely clear and regard must be had to its object. "therefore, in view of the said Supreme Court decision the law that should be applied to the facts of the particular case, is the law which was prevailing on the date when the matter came up for decision finally. In the said case also, the provisions of the W. B. Premises tenancy Act (12 of 1956) were made applicable to the area in question during the pendency of the appeal. In the said case also, the provisions of the W. B. Premises tenancy Act (12 of 1956) were made applicable to the area in question during the pendency of the appeal. The Supreme court held that in view of the extension of the tenancy Act to the particular area, during the pendency of the appeal, the ordinary civil court lost its jurisdiction to pass a decree for eviction under the general law or provisions, of the T. P. Act. The Supreme Court further laid down the principle that it is ultimately the decree passed by the appellate court that would be the subject matter of the execution. ( 10 ) LEARNED Author Mulla in his c. P. C. 14th edition has said at page 620 as :"the expression "suit" in this section includes execution proceedings, from which it follows that if a suit is of the nature cognizable by a Small cause Court, no second appeal will lie from an order in execution of the decree passed in the suit, unless the value of. the suit exceeds Rs. 500, now rs. 3000. It is immaterial that the order in execution is made by a Court other than a Court of Small Causes or a Court vested with the powers of a small Causes Court, as where the property attached in execution of the decree is immovable property and the order in execution is made by a First class Subordinate Judge in the ordinary jurisdiction. The test is, what was the nature of the suit in which the decree sought to be executed was passed, and not the nature of the proceedings in execution. " ( 11 ) LEARNED counsel Sri. Visweswar submitted that the point of want of inherent jurisdiction ought to have been raised by the Judgment-Debtors (JDrs) either in the first appellate Court or in this court and that they not' having done so, their contention in this regard would be barred by res judicata. The plea of want of inherent jurisdiction has been raised by the JDrs. in this case in the course of the execution. In my opinion that is the only proper forum for the jdrs. to raise such a plea because amended Section 47 of C. P. C. bars a suit. The plea of want of inherent jurisdiction has been raised by the JDrs. in this case in the course of the execution. In my opinion that is the only proper forum for the jdrs. to raise such a plea because amended Section 47 of C. P. C. bars a suit. In view of the bar of the suit created by the amended Section 47, a party cannot file a separate proceedings or suit challenging the decree on the ground that the court which passed the decree had no jurisdiction. Therefore, the executing court is the only proper forum in which such a plea could be raised and it should properly adjudicate such a plea. Similar situation arose in K. Muhammad Sukri sahib v Thelapurth Madhava Kurup and another, A. l. R. 1949 Madras 809. The madras High Court held :"where unaware of the amendment of Cl. 8, Non-Residential Building Rent control Order, 1942, made on 11th july, 1944, the Court passes an ejectment decree against a tenant, the executing Court cannot execute the decree. Clauses as amended prohibits the decree-holder from filing the execution petition in the Court, his only way of evicting the tenant being to file an application before the Rent controller. There is no question of amendment coming into force during the pendency of proceeding and the retrospective operation of the amendment. During the period between the passing of the decree and filing of the execution petition it cannot be said that there is any pending proceeding. The Court is only concerned with the right of the decree holder to execute his decree, which the Court is prohibited from doing by reason of the amended Cl. 8. Where the executing court not being aware of this amendment gives possession to the decree-holder, it can subsequently the amendment being brought to its notice, set aside the order under S. 151 C. P. C. "similar is the principle laid down in S. B. K. Oil Mills v Subhash Chandra, am 1961 SC 1596. 8. Where the executing court not being aware of this amendment gives possession to the decree-holder, it can subsequently the amendment being brought to its notice, set aside the order under S. 151 C. P. C. "similar is the principle laid down in S. B. K. Oil Mills v Subhash Chandra, am 1961 SC 1596. It has been laid down in Kiran Singh and others v Chaman paswan and others, AIR 1954 SC 340 as:"it is a fundamental principle 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. " ( 12 ) THEREFORE, in my opinion, a decree passed by the lower appellate court under the provisions of the Transfer of Property Act suffers from want- of inherent jurisdiction and it goes to the root of the matter and, therefore, the decree passed by the first appellate court is void ab initio for want of inherent jurisdiction. The decree passed by this court in RSA. 214/84 also suffers from want of inherent jurisdiction. Therefore, the decree passed by this court also is a nullity and void ab initio. When the decree is prime facie void ab initio, the question of applicability of res judicata does not arise at all because it is no decree at all. Therefore, the said argument advanced by Shri. Visweswara also merits to be rejected. ( 13 ) LEARNED Counsel Sri. Visweswara relied on Satyadhyan Ghoral and others v Smt. Deorajin and another 1969, s. C. 1941. The want of inherent jurisdiction was not apparent on the face of the record in the said case. It required further investigation. The present case is one where the want of inherent jurisdiction is apparent on the face of the record itself. Therefore, the said decision also would not be applicable to the facts of the present case. He then relied on air 1976 Karnataka, 13 (Ahmed Khan v mohamad Khasim Sab ). It required further investigation. The present case is one where the want of inherent jurisdiction is apparent on the face of the record itself. Therefore, the said decision also would not be applicable to the facts of the present case. He then relied on air 1976 Karnataka, 13 (Ahmed Khan v mohamad Khasim Sab ). It is laid dcwn in the said case as 'lack of inherent jurisdiction goes to the root of competence of court to try such a case and renders decree a nullity. When a decree which is a nullity is sought to be executed, an objection in that behalf may be raised in a proceeding for execution. When the decree is made by a Court which has no inherent jurisdiction to make, an objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of record and requires examination of the question 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*. In the present case want of inherent jurisdiction is apparent on the face of record and, therefore, the said principle laid down in Ahmed Khan's case would not be of much help in the present case. He, then, referred me to shiva Rao v Cecilia Pereira. ILR, 1985 kar. 2304. In the said case it was held"from a plain reading of the subsection it becomes obvious that the prohibition contained therein operates prospectively, that is, after the subsection is made operative by bringing it into force. A Court or an Authority cannot make an order or a decree for recovery of possession of a premises in favour of a landlord against the tenant because of the sub-section. In any suit or petition filed therefor only to the extent either of them is pending without being decided upon till then. A Court or an Authority cannot make an order or a decree for recovery of possession of a premises in favour of a landlord against the tenant because of the sub-section. In any suit or petition filed therefor only to the extent either of them is pending without being decided upon till then. However, the language of the subsection does not permit the placing upon it a construction which would suggest that an order of a decree for the recovery of possession of a premises made in favour of a landlord against the tenant by a Court or an authority, before the coming into force of that sub-section, cannot subsequent to its coming into force, be executed or given effect to by such a Court or such an authority. . . . when sub-section (1) of Section 21 of the Act does not extend its restriction to orders or decrees for recovery of possession already made, it is difficult to hold that sub-section (1) of Section 21 of the Act should be construed as including a restriction relating to execution of an order or a decree for recovery of possession of a premises from a tenant made before the coming into force of that provision of the act. "further, in the said decision, the ruling reported in A. I. R. 1985 S. C. 11 was not referred to. In view of the said supreme Court decision, the ruling in ilr 1985 Kar. 2304, cannot be said to hold the floor. ( 14 ) SRI Visweswara relied on Janaki v Rama Bangera, ILR 1985 Kar. 973. It is stated in the said case as :"notwithstanding the language employed to bring the amendment to the statute, the Courts must see whether the intention of the legislature is to bring the amended provision into operation retrospectively orprospectively. If that test is to be applied, there is nothing in the Amendment Act other than the employment of the word substitution* that is meant to be retrospective i. e. there is no express provision made, except what is mentioned in sub-section (2) of Section 1 of the Amendment Act, viz "it shall be deemed to have come into force on the thirty first day of December, 1982. " In other words, the legislature did not intend the amendment to be effective from a date earlier than the specified date in 1982. " In other words, the legislature did not intend the amendment to be effective from a date earlier than the specified date in 1982. "it has been further held therein as :"the language used in Section 21 of the Principal Act is that no Court shall pass a decree for eviction notwithstanding anything to the contrary contained in any other law or contract. A decree is neither (aw nor a contract. Therefore, the decree validly passed prior to the commencement of the amendment Act is a valid decree executable when there is no inhibition in law for such execution. The words "no order to decree for the recovery of possession of any premises shall be made' in S. 21 of the Principal Act must be held to be in futuro. Therefore, the Amendment Act itself being prospective and not retrospective, that was not the intention of legislature in fact. By any process known to Courts it is not possible to interpret the amendment in question to have the effect of nullifying or invalidating the decree passed prior to amendment. "it was further held therein as:"what the Executing Court does is nothing more than giving etfect to the decree that has become final. Such giving effect to the decree does not amount to continuation of the suit. "in the said Janaki's case, there was no appeal. The decree appears to have become final before the application or extension of the provisions of the Rent control Act. Therefore, the said Janaki's case would not be of any help in this case, ( 15 ) BUT, as already stated above, the execution would be a continuation of the proceeding or the suit itself. When that is so, whether the decree sought to be executed was one passed prior to the coming into force of the rent Act or whether it had become final prior to the application of the amended provision, the position does not change. Even decrees which have become final prior to the application of the amended provisions, become unexecutable. ( 16 ) LEARNED Counsel Sri Visweswara contended that the principle of merger of a decree cannot be urged in order to throttle the execution proceedings. It is no doubt a general rule of law. Even decrees which have become final prior to the application of the amended provisions, become unexecutable. ( 16 ) LEARNED Counsel Sri Visweswara contended that the principle of merger of a decree cannot be urged in order to throttle the execution proceedings. It is no doubt a general rule of law. As laid down by Supreme Court in A. I R. 1985 S. C. 111, it is only the final decree which disposed of the matter finally that would rule the rights of the parties. Supreme Court held that the appellate court is bound by those amended provisions. It may be that the Munsiff court while it passed the decree had jurisdiction to pass the decree because the Rent Control Act was not applicable to Chikkodi at that time. It is only the subsequent event that strikes at the root of the argument advanced by learned counsel Sri Visweswara. Therefore, the said argument profounded by Sri Visweswara does not, in my opinion, hold the floor at all. ( 17 ) HE then relied on Smt. Ratan male Mondal and another v Gopal Lal daga and others, A. I. R. 1955 Calcutta, 14. It was a case decided under Section 38 of C. P. C. The question of want of inherent jurisdiction did not arise at all in that case. The principle laid down in the said ruling is 'although it is true that technically the decree of the trial court merges in the decree of the appeal court. It cannot be said that even when the decree of the trial Court is affirmed in appeal the decree of the trial court is wiped out for all purposes. The said calcutta decision would not be applicable to the facts of the present case, be. cause the decree passed by the first appellate Court itself is void abinito. He then relied on State of U. P. v Mohamad nooh, A. I. R. 1958 S,c. 86. It was not a case where the question of want of inherent jurisdiction was involved. However, supreme Court has laid down as ; 'but for the purposes of the present case, it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial couft acted without jurisdiction. However, supreme Court has laid down as ; 'but for the purposes of the present case, it is sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it does not follow that the trial couft acted without jurisdiction. There is a basic difference between want of jurisdiction, and our attention has not been drawn to any authority in which mere non-compliance with the rules of procedure has been made a ground for granting one of the writs prayed for. Therefore, the said decision will not help him. The principle of merger of decree cannot be applied in a case where the decree suffers from want of inherent jurisdiction. Therefore, the submission of learned counsel Sri. Visweswara in this regard is unacceptable. ( 18 ) IN the result the revision is dismissed. No costs. ( 19 ) AT this stage learned counsel visweswara submitted that his client desires to approach Supreme Court and that the operation of the decree may be stayed for one year. One year would be too long, Inerest of justice would be met if the operation of the order is stayed till the end of December, 1986. The operation of this order is stayed till the end of December. 1986. --- *** --- .