Judgment :- The defendant is the appellant. The suit is filed by the respondent for declaration that the appellant is not entitled to execute the decree in O.S. No. 4439 of 1975, dated 23.1.1978 on the file of the Sixth Assistant Judge, City Civil Court, Madras, as it is null and void and vitiated by fraud and collusion and not binding on him. The respondent also prays for a consequential injunction restraining the appellant from executing the decree against him. 2. The facts leading to the suit are as follows:— The appellant is the owner of the suit property. The appellant let out the same to one T.P. Ramanathan. It filed a suit O.S. No. 4439 of 1975 on the file of the with Assistant Judge, City Civil Court, Madras, for evicting the said Ramanathan from the suit premises. The latter filed a written statement contesting the claim of the appellant and the maintainability of the suit. The contention raised by the defendant in the earlier suit was that the suit was not maintainable in the civil court. But later, he remained ex parte and a decree was passed in favour of the appellant herein on the basis of the evidence adduced by the appellant. When the decree was sought to be executed by the appellant, on 10.7.1978 the respondent resisted the execution. The appellant filed E.A. No. 3807 of 1978 for removing the obstruction caused by the respondent. It was contested by the respondent on several grounds. The grounds urged in the present suit were urged in that application for removal of obstruction. The executing court recorded evidence on both sides and passed an order on 14-7-1982 in favour of the Appellant. The respondent filed an appeal against the said order in the court of the IInd Additional Judge, City Civil Court, Madras. The appeal was dismissed on 15.12.1982. Thereafter, the present suit is filed by the respondent in January 1983. 3. In the plaint it is alleged by the respondent that he is a sub-tenant under Ramanathan and that he was let into possession on a monthly rent of Rs. 750/-. It is alleged that the appellant was aware of the sub-letting in favour of the respondent herein and he acquiesced in the same without raising any protest. 3. In the plaint it is alleged by the respondent that he is a sub-tenant under Ramanathan and that he was let into possession on a monthly rent of Rs. 750/-. It is alleged that the appellant was aware of the sub-letting in favour of the respondent herein and he acquiesced in the same without raising any protest. It is further stated that no document was filed by the appellant in the suit against Ramanathan to prove that the appellant was a public trust and the lease deed executed between Ramanathan and the appellant was also not filed in that suit. Thus, it is alleged that the ex parte decree obtained by the appellant in O.S. No. 4439 of 1975 was vitiated by fraud. It is stated in the plaint that the appellant deliberately omitted to make the respondent a party to that suit and kept the respondent in the dark. It is also alleged that the documentary evidence in the shape of trust deed and lease deed in favour of Ramanathan which were material documents were not filed in the suit and the evidence adduced on behalf of the appellant in the earlier suit was not sufficient to sustain the decree passed in the suit. Thirdly it is stated that the appellant owed a duty to the court to disclose that the respondent was an authorised sub-tenant as Ramanathan was permitted to sub-lease. On such allegations, it is stated in the plaint that the court had no jurisdiction to pass a decree for eviction against Ramanathan and consequently, the decree is null and void. 4. In the written statement filed by the appellant the allegations in the plaint are denied and it is stated further that the trust deed was disclosed in the list of documents appended to the plaint in the suit filed by the appellant. It is also stated in the written statement that the decree was passed after evidence was let in by the appellant and the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act (Act XVIII of 1960) were not applicable to the building in question. The allegations of fraud and collusion are denied in the written statement. The appellant has raised a plea that the suit is barred by the principle of RES JUDICATA and it is barred by limitation. 5. The allegations of fraud and collusion are denied in the written statement. The appellant has raised a plea that the suit is barred by the principle of RES JUDICATA and it is barred by limitation. 5. The appellant examined one of the trustees, who is the President of the Board of Trustees as D.W. 1. The respondent examined himself as P.W. 1. The respondent did not adduce any other evidence on his side. On the other hand, the appellant filed eight documents in support of his case. 6. The courts below have taken the view that the decree passed in O.S. No. 4439 of 1975 is vitiated by fraud and it is not binding on the respondent herein. The courts below also held that the Civil Court had no jurisdiction to try the suit. 7. Even at the outset it must be pointed out that the concurrent conclusions of the Courts below are wholly unsustainable. The grounds on which the Courts below have held that the decree is vitiated by fraud are not sustainable on the basis of the evidence on record. They are based on surmises and on unwarranted inferences made by the Courts below. Neither of the Courts has kept in mind the correct principles of law which are applicable in a case where a decree is said to be vitiated by fraud and collusion. Nor the courts below have adverted to the question of jurisdiction of civil court to decide the suit in the proper perspective. The relevant aspects of the matter have not been taken into account by the courts below. The judgments are, therefore, perverse and they cannot be sustained. 8. The first question that has to be decided is whether the decree in O.S No. 4439 of 1975 is null and void on the footing that the civil court had no jurisdiction to decide the same. If this question is answered in favour of the appellant herein, then the other questions cannot be raised in these proceedings. It will not be open to the respondent to contend that the decree is not binding on him, as admittedly he is only a sub-tenant and he is not a direct tenant under the appellant herein. 9. On the question of jurisdiction, the relevant facts which should be borne in mind are that the appellant is a public trust. It will not be open to the respondent to contend that the decree is not binding on him, as admittedly he is only a sub-tenant and he is not a direct tenant under the appellant herein. 9. On the question of jurisdiction, the relevant facts which should be borne in mind are that the appellant is a public trust. It was on that footing the appellant filed the suit O.S. No. 4439 of 1975 stating in the plaint expressly that as it was a public trust, it was not governed by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. There is no dispute that such an averment was found in the plaint in O.S. No. 4439 of 1975. Though the defendant in that suit originally disputed the same, he remained ex parte . The Court recorded the evidence adduced on behalf of the plaintiff in that suit and granted a decree in favour of the plaintiff therein. If it is the contention of the respondent herein that the Court did not have jurisdiction to try the suit, it is for the respondent to allege and prove that the appellant is not a public trust. The respondent has nowhere stated in the plaint that the appellant is not a public trust. The respondent has gone to the extent of stating that the appellant did not produce the deed of trust in the earlier proceedings to prove that it was a public trust. But, the respondent has not chosen to make a positive assertion that the appellant is not a public trust. He has stopped with the averment that the appellant did not produce the relevant documents in the prior case. That would not be sufficient pleading to support the case of the respondent that the decree passed in the earlier suit is one without jurisdiction. 10. Even though the respondent has failed to plead the relevant facts in the present plaint, I am inclined to consider the question as if the respondent is entitled to have a finding. But, in the present case, the respondent has not adduced any evidence to show that the appellant is not a public trust. The respondent, who has examined himself as P.W. 1 has riot stated anywhere in his evidence that the appellant is not a public trust. But, in the present case, the respondent has not adduced any evidence to show that the appellant is not a public trust. The respondent, who has examined himself as P.W. 1 has riot stated anywhere in his evidence that the appellant is not a public trust. His evidence is focussed on the question whether the building is a non-residential building or a residential building. It does not deal with the question whether the trust is a public trust or a private trust. In fact, in the cross-examination he states that he does not know whether the respondent trust is a public charitable trust. He admits that he filed a writ viz., W.P. No. 1585 of 1982 challenging the validity of G.O.Ms. No. 2000 exempting religious public trusts and public charitable trusts from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. But, he allowed the writ petition to be dismissed as not pressed. According to his evidence, he does not even remember as to what he stated before the High Court while withdrawing the Writ Petition. He goes one step further and says that he does not know what happened to that writ petition. 11. No doubt, the appellant did not produce the deed of trust in the courts below. Learned counsel for the respondent taking advantage of the same was repeatedly commenting on the failure of the appellant to produce the trust deed. I directed the appellant to produce the original deed of trust. Accordingly, the appellant filed C.M.P. No. 13010 of 1991 to file the deed of trust dated 14-7-1913 and a supplemental deed dated 21-3-1920. Along with them, the appellant filed a printed copy of the two documents in the shape of a book. In my view, the documents being necessary for the purpose of deciding the character of the trust, I am marking the documents produced by the appellant as additional evidence in the appeal. At that stage, learned counsel for the respondent raised a contention that the documents do not show that the suit property is a property belonging to the trust. It was never the case of the respondent that the property did not belong to the trust at any time. But, when the deeds of trust produced by the appellant did not refer to the suit property, such a contention was raised by learned counsel for the respondent. It was never the case of the respondent that the property did not belong to the trust at any time. But, when the deeds of trust produced by the appellant did not refer to the suit property, such a contention was raised by learned counsel for the respondent. Then it was submitted by learned counsel for the appellant that the property was purchased by the trust on 23.9.1925 in an auction held by the Official Referee, High Court, Madras. On my direction, the original sale certificate is also produced along with an affidavit. The original sale certificate in C.S. No. 479 of 1923 on the file of this Court shows that the suit property was purchased by the appellant/trust. The said document is also marked as additional evidence in the appeal. The documents are marked as Exhibits B.9, B.10, B.11 and B.12. Exs. B.9 and B.10 are the original trust deeds, the trust copies of which are found in the printed book marked as Ex. B.11. Ex. B.12 is the original sale certificate. 12. A perusal of the trust deeds places the matter beyond doubt. The objects of the trust are set out in schedules B to K to the document dated 14.7.1913. It is seen that provisions are made for annual donations for temple or other festivals set out in Schedule B, Upanayanam of poor boys in the places set out in Schedule C, feeding of the poor and infirm in Triplicane Annadhana Samajam as set out in Schedule D, providing for expenses for boarding and clothing of poor students of Veda Patasala at Sreeperumbudur and other places as set out in Schedule E, Prabandham Kalakshepam and other religious education as set out in Schedule F, Secular Education as set out in Schedule G, Female Education as set out in Schedule H, Donations to members of the Mandayam Community as set out in Schedule I, the Bikshas of poor Tengalai Brahmin sanyasins not attached to any mutt as set out in Schedule J and boarding of the deserving poor students of the Ubhaya Vedanta Vardhini Patasala at Sriperumbudur as set out in Schedule K. The second document dated 21.3.1920 adds some more properties in the shape of promissory notes and mortgages which were owned by the founders and they are made trust properties by virtue of the said document. Thus, the income of the trust is augmented by the second document. 13. On perusing the trust deeds, some new contentions were put forward by learned counsel for the respondent. According to him, the trust deed disclosed that the trust is not exclusively public religious trust, but it is a composite trust for religious and secular purposes and therefore, the appellant does not fall within the G.O. in question. It is also argued that some of the provisions would enable the founder to discontinue the performance of certain charities mentioned in Schedules B to E and there are provisions for payment of certain amounts to the founder and his wife. According to learned counsel, it may be possible to contend that the entire trust is void. But advisedly, he did not raise that contention. 14. The contentions of learned counsel for the respondent are without any substance. It is too well known that this trust is being performed according to the deeds of trust in the city of Madras for such a long time that a court can take judicial notice of the fact that the trust is a public trust and the trustees are carrying out the trust in accordance with the directions contained in the trust. The founder died about 50 years back and his wife is also no more. So, the provisions relating to payment of some money to the founder and his wife have ceased to be operative. The provision for discontinuing the performance of certain objects remain as a provision and it was never given effect to. In fact, even assuming that such provisions would have been given effect to or were given effect to by the founder, they were all with reference to Schedules B to E only. There were other Schedules viz., Schedules F to K which are sufficient to bring the trust within the notification. They are also public purposes and the trust would certainly fall within the notifications passed by the Government. 15. Before proceeding further, I would refer to the notifications passed by the Government under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The first notification was made in 1974 in G.O.Ms. No. 1998, Home, dated 12th August, 1974. Under that notification, all buildings owned by the Hindu, Christian and Muslim religious trusts and charitable institutions were exempted from all the provisions of the Act. The first notification was made in 1974 in G.O.Ms. No. 1998, Home, dated 12th August, 1974. Under that notification, all buildings owned by the Hindu, Christian and Muslim religious trusts and charitable institutions were exempted from all the provisions of the Act. The notification applied to all trusts whether public or private. The second notification was issued in 1976 under G.O.Ms. No. 2000, Home dated 16th August 1976. The exemption was restricted to public trusts. Under that notification, the buildings owned by the Hindu, Christian and Muslim religious public trusts and public charitable trusts were exempted from all the provisions of the Act. The contention of learned counsel that if the trust is partly religious and partly secular, it will not fall within the scope of the two notifications, is unsustainable. It cannot be accepted. Even if a trust is partly religious and partly secular, it will certainly fall within the first notification and if it is a public trust it will fall within the second notification. Just because the objects of the public trust cover secular purposes also, it will not cease to be a religious public trust or a public charitable trust within the meaning of the second notification. Similarly, any private trust, if it is religious and charitable, that will fall within the notification and it will not fall outside the notification just because some of the objects are secular. The secular objects will undoubtedly fall within the expression charitable institution. In so far as religious objects are concerned, it will fall within the first part of the notification and charitable trust will fall under the latter part of the notification. Hence, the contention has to be rejected. 16. In this case, it is not necessary even to hold that the trust is a public trust, The suit O.S. No. 4439 of 1975 was filed when the first notification of 1974 was in force and before the second notification of 1976 was made. As pointed out already, the first notification governed even private trusts. Even if the appellant trust is a private trust, it will fall within the first notification and its building was exempted from the provisions of the Act when it filed the earlier suit. That suit was filed in 1975. As pointed out already, the first notification governed even private trusts. Even if the appellant trust is a private trust, it will fall within the first notification and its building was exempted from the provisions of the Act when it filed the earlier suit. That suit was filed in 1975. Hence, at that time, the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act were not applicable to the building in question and the suit was, therefore, maintainable in a civil court. It has been held by a Division Bench of this Court in Sengalaneer Pllaiar Temple Koranad, Mayavaram represented by its Trustees Ambalavanan Chettiar v. Manickam Chettiar 90 L.W. 162 = 1977 1 M.L.J. 425(D.B.) that the Government notifications under S. 29 of the Act are not retrospective in operation. Hence, the later notification was not applicable to the suit O.S. No. 4439 of 1975. Therefore, even if the trust is only a private trust, the suit filed by it was maintainable and the decree passed by the Civil Court was well within its jurisdiction. I have already pointed out that the trust is a public trust and there can be no doubt about the same. A fortiori the decree is a valid one. 17. The evidence adduced by the defendant in the present case comprises of the order made in E.A. No. 3807 of 1978 marked as Ex. B.3 and the order made in C.M.A. No. 172 of 1982 marked as Ex. B.4. In the order, reference is made to the evidence adduced in that proceeding. It is found in the appellate order that the witness who was examined on behalf of the trust had given evidence that the trust was a public trust and the rent payable by Ramanathan was Rs. 750/- per mensem. The appellate order also refers to the admission made by the respondent herein that the property belonged to the trust. Thus, there was sufficient evidence before the court to show that the trust was a public trust and the property was owned by the suit trust. Consequently, the decree passed in the earlier suit was one within the jurisdiction of the Civil Court. Thus, there was sufficient evidence before the court to show that the trust was a public trust and the property was owned by the suit trust. Consequently, the decree passed in the earlier suit was one within the jurisdiction of the Civil Court. I am convinced that the appellant trust is not only a trust but also a public trust and it was always exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act since the passing of the G.O. of 1974. Consequently the decree made in O.S. No. 4439 of 1975 is a valid one. 18. An attack has been made against the decree on the ground that the buildings in question is a non-residential one and it was not exempted from the provisions of the Act under S. 30 of the Act. That question is really unnecessary as the Supreme Court has held that the exemption under S. 30 for residential buildings having a rental value of more than Rs. 400/- per mensem was invalid and unconstitutional. Hence, it is not relevant at all in the present case to consider the same. But, a lot of discussion is made in the judgments of the Courts below only with reference to this aspect of the matter. The evidence adduced by the respondent in the case relates mostly to that aspect and not to the other aspect as to the character of the trust. No doubt that circumstance is relied on by the respondent for the purpose of supporting his case of fraud. I will deal with the same a little later. For the purpose of deciding of question of jurisdiction, whether the building is a residential or non-residential is irrelevant. Hence, I do not propose to consider the same at this stage. 19. Learned counsel for the respondent referred to a recent judgment of the Supreme Court in Sushil Kumar Mehta v. Gobind Ram Bogra 1990 I S.C.C. 193. The Supreme Court held that a defect of jurisdiction cannot be cured by consent or waiver and the principles of RES JUDICATA would not operate when a judgment is vitiated by want of jurisdiction. Learned counsel for the respondent referred to a recent judgment of the Supreme Court in Sushil Kumar Mehta v. Gobind Ram Bogra 1990 I S.C.C. 193. The Supreme Court held that a defect of jurisdiction cannot be cured by consent or waiver and the principles of RES JUDICATA would not operate when a judgment is vitiated by want of jurisdiction. The Supreme Court referred to an earlier judgment in Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy 1970 I S.C.C. 613, wherein it was held that the principle of RES JUDICATA would not apply to a case where the decision related to the jurisdiction of the court to try the earlier suit. The following observations made in the earlier case are extracted: “A question of jurisdiction of the court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J. observed in Tarini Charan Bhattacharjee case (A.I.R. 1928 Cal. 777).”. “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 the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory or precluding the parties from reopening or re-contesting 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 litigation is the same or otherwise.” 20. The Supreme Court has also made a reference to another of its judgments in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman 1970-1-S.C.C. 670 = 84 L.W. 67 S. In that case, the principle of law was stated as follows:— “7. The Supreme Court has also made a reference to another of its judgments in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman 1970-1-S.C.C. 670 = 84 L.W. 67 S. In that case, the principle of law was stated as follows:— “7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears o n the face of the record, where the objection as to the jurisdiction of the court to pass the decree does not appear on 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. In Jnamendra Mohan Bhaduri and another v. Rabindra Nath Chakravarti L.R. 60 I.A. 71 the judicial committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction.” It was held in that case that the jurisdiction of the Court on Small Causes depended upon the interpretation of the terms of the agreement of lease and the user to which the land was put at the date of the grant of the lease and such questions could not be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed the decree. It was observed that if the decree on the face of the record was without a jurisdiction and the question did not relate to the territorial jurisdiction or under S. 11 of the Suits Valuation Act, objections to the jurisdiction of the court to make the decree could be raised; but where it is necessary to investigate facts in order to determine whether the court Which passed the decree had no jurisdiction to entertain and try the suit, the objection could not be raised in the execution proceeding. 21. The above ruling was distinguished in Sushil Mehtas case 1990 I S.C.C. 193. After referring to the judgment in Vasudev Dhanjibhai Modis case 1970 I S.C.C. 670 = 84 L.W. 67(S.C.)(S.N.), the Supreme Court observed that the ratio in that case was not in conflict with the view taken by the court in Mathura Prasad Bajoo Jaiswals case 1970 I S.C.C. 613. In Sushil Kumar Mehtas case 1990 I S.C.C. 193 , it was a case of interpretation of the relevant provisions of the Act and there was no question of considering the facts of the case. In fact, the Supreme Court observed at the end of the judgment that, the 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, was not Res Judicata in the subsequent suit. Thus, the Supreme Court pointed out that the ruling in Vasudev Dhanjibhai Modis case 1970 I S.C.C. 670 = 84 L.W. 67(S.C.)(S.N.) would apply to a case where the facts in question were in dispute. 22. Under similar circumstances, I rendered a judgment in Narasammal v. M.S. Shanmugam 1992-2-L.W. 563 The following passage in that judgment would be relevant:— “8. Learned counsel for the petitioner contends that a void transaction could not be validated by a decree of the Court. There is a fallacy in this argument. For declaring the particular transaction to be void, certain facts are necessary. The Court has to give findings on the question of fact which arises for consideration and if the findings lead to the conclusion that there were sufficient circumstances to vitiate the validity of the sale, then the court would hold that the sale was void. For declaring the particular transaction to be void, certain facts are necessary. The Court has to give findings on the question of fact which arises for consideration and if the findings lead to the conclusion that there were sufficient circumstances to vitiate the validity of the sale, then the court would hold that the sale was void. If, on the other hand, the court comes to the conclusion that the facts and circumstances do not indicate any vitiating factor, then the court would hold that the sale was valid. In the present case, the court held that the sale was valid. That was on the footing that there was no circumstance vitiating the sale. Hence it cannot be contended that the court cannot validate a void transaction. This is not a case of validating a void transaction, but this is a case of the court finding that there was no circumstance to vitiate the transaction to hold it to be invalid. Once the court declares that a particular transaction to hold it to be invalid. Once the court declares that a particular transaction is valid, then it is not for the executing court to say that the transaction is void ab initio and the decree can be ignored by the executing court. The proposition advanced by learned counsel to say the least, is preposterous.” 23. Thus, the principle applicable to the present case is that laid down in Vasudev Dhanjibhai Modis case 1970 I S.C.C. 670 = 84 L.W. 67 (S.C.)(S.N.). The question of jurisdiction of courts depended not on any interpretation of any statute or the notification but on the provisions of the trust deed. There was an assertion on the part of the appellant herein in the plaint in O.S. No. 4439 of 1975 that it was a public trust and exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. Though that was denied by the defendant in that suit in the written statement, he remained ex parte later. Evidence was adduced by the plaintiff in that suit to the effect that it was a public trust. That evidence was accepted by the court and a decree was passed. Unless that decree is set aside by means known to law, that decree is a valid decree. The question of jurisdiction cannot be raised in a subsequent proceeding or even in the execution proceeding. That evidence was accepted by the court and a decree was passed. Unless that decree is set aside by means known to law, that decree is a valid decree. The question of jurisdiction cannot be raised in a subsequent proceeding or even in the execution proceeding. 24. However, in this case, the question was raised by the respondent herein in the execution proceeding. In the application filed by the appellant under Order XXI, Rule 97 of the Code of Civil Procedure for removal of obstruction, the respondent raised all the contentions which are now raised by him and they were all negatived by the executing court. It is not now open to the respondent to raise the very same contentions and file a separate suit. 25. After the amendment of the Code of Civil Procedure in 1976, a separate suit is barred with reference to matters to be considered under Order XXI, Rule 97 to Rule 103 of the Code of Civil Procedure. Rule 101 of Order XXI of the Code of Civil Procedure provides that all questions including questions relating to right, title or interest in the property arising between the parties to a proceeding on an application under Rule 97 or Rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by court dealing with the application and not by a separate suit and for that purpose, the Court shall, notwithstanding anything to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions. Thus, the rule prevents any party to such an application from filing a separate suit. In the present proceeding, there is an order by the executing court on an application under Order XXI, Rule 97 of the Code of Civil Procedure and that was confirmed by the appellate court. Thereafter, it is not open to the respondent herein to file a separate suit to question the same. 26. This Court had occasion to consider the position in M. Chockalingam v. Veerabadra Chettiar 96 L.W. 668. The Division Bench held that it is apparent after the amendment that the question has to be determined only by the executing court and not by a separate suit and as such, a separate suit in such matters is barred. 26. This Court had occasion to consider the position in M. Chockalingam v. Veerabadra Chettiar 96 L.W. 668. The Division Bench held that it is apparent after the amendment that the question has to be determined only by the executing court and not by a separate suit and as such, a separate suit in such matters is barred. The Division Bench pointed out that an order under Rule 103 of Order XXI, Code of Civil Procedure, is conclusive with regard to the rights of the parties and has the force of a decree and is subject to an appeal, as if it were a decree. In fact the respondent filed an appeal treating it as a decree and failed there. 27. In Fathima Automobiles v. P.K.P. Nair A.I.R. 1985 Madras 318 98 L.W. 116 a Division Bench of this court held that even in a matter arising under the Tamil Nadu Buildings (Lease and Rent Control) Act, if an order is passed under Rule 103 of Order XXI, Code of Civil Procedure, the same has to be challenged only by an appeal and a separate suit is not maintainable. The Bench observed that under S. 23(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, an obstructor, who is aggrieved against an order directing removal of obstruction passed by the Rent Controller, can file appeal under the section and he cannot file a separate suit. Thus, the present suit is not maintainable at all. 28. Though it is not necessary for me to consider the allegations of fraud and collusion as vitiating the decree passed in O.S. No. 4439 of 1975, for the sake of completion, I will deal with the same. In fact, the Courts below have rested their conclusions on their findings that the earlier decree is vitiated by fraud and collusion. Hence, I am obliged to discuss that aspect of the matter also. As pointed out earlier, there is no evidence on record to show that the decree in the earlier suit is vitiated by fraud. The basic principle of law relating to the case of fraud as vitiating a decree passed in a suit has been ignored by the Courts below. There are two judgments of this Court rendered by Division Benches, which have considered the matter in detail. The basic principle of law relating to the case of fraud as vitiating a decree passed in a suit has been ignored by the Courts below. There are two judgments of this Court rendered by Division Benches, which have considered the matter in detail. In Jagannadh v. Perumal Naidu and others 1969 II M.L.J. 558 it is held that fraud in order to vitiate a decree must be an extrinsic one and failure on the part of parties to place the relevant evidence before the court will not amount to fraud so as to vitiate the decree. That judgment was referred to and a similar view was taken by another Division Bench in The Weavers Milk Ltd. Rajapalayam v. Balkis Animal and others 1969 II M.L.J. 509. The Bench held that extrinsic fraud alone can be a ground for setting aside an earlier judgment and suppression of evidence and even negligent conduct in the prior litigation would not be proper grounds for setting aside an earlier order. 29. In the present case, the respondent claims that he was not a party to the earlier suit and that his lessor Ramanathan and the appellant here in colluded together and made the court pass a decree in favour of the appellant herein. There is no evidence of such collusion. Even according to the plaint, the alleged collusion has to be inferred from certain circumstances set out in the plaint. Such an interference cannot be drawn from the circumstances which are catalogued in the plaint. I have referred to the same earlier in this judgment. The mere fact that the respondent was not impleaded as a party to the earlier suit would not lead to an inference that there was fraud and collusion on the part of the appellant and his lessee Ramanathan. In fact, there is no necessity in law to implead a sub-lessee as a party to the suit by the lessor against his lessee. It is admitted that the respondent is only a sub-lessee and even assuming that the appellant had knowledge of the sub-lease, he was not bound in law to implead the respondent as a party to his suit O.S. No. 4439 of 1975. Any decree obtained by the appellant against his lessee would automatically be binding on the sub-lessee, the respondent herein. Any decree obtained by the appellant against his lessee would automatically be binding on the sub-lessee, the respondent herein. The Supreme Court in Bupchand Gupta v. Raghuvanshi (Private) Ltd. and another A.I.R. 1964 S.C. 1889 held that the mere fact that the sub-lessee was not impleaded or that the lessee did not actually contest the suit, did not render the decree passed in the suit as collusive thereby, when it was not suggested by the sub-lessee that the lessee had even a plausible defence to the claim for ejectment. The Supreme Court pointed out that collusion in judicial proceedings is a secret arrangement between the two persons that the one should institute a suit against the other in order to obtain the decision of a judicial tribunal for some sinister purposes. The following passage found in the judgment of the Supreme Court is very instructive and relevant: 10. Thus, the mere fact that the defendant agrees with the plaintiff that if a suit is brought he would not defend it, would not necessarily prove collusion. It is only if this agreement is done improperly in the sense that a dishonest purpose is intended to be achieved that they can be said to have colluded 11. There is little doubt that in the present case Land and Bricks agreed with Raghuvanshi that the suit for ejectment would not be contested. When the suit was instituted Land and Bricks did not contest and the ex parte decree was passed. Raghuvanshi did not implead this appellant in that suit. Can any of these acts viz., Land and Bricks agreeing with Raghuvanishi that it would not contest the suit, the actual refraining by Land and Bricks from contesting the suit or the act of Raghuvanshi in not impleading the appellant be said to be an improper act or improper refraining from an act? We do not see how any of these things can be said to be improper. 12. Taking the last action first, viz., Raghuvanshis admission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. We do not see how any of these things can be said to be improper. 12. Taking the last action first, viz., Raghuvanshis admission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases where the landlord institutes a suit against the lessee for possession of the land on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee, but this is a position well understood by him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. 13. Nor is it possible, in our opinion, to say that the omission of land and Bricks to contest the ejectment suit was an improper act. It has not been suggested that Land and Bricks had a good defences against the claim for ejectment but did not take it for the mere purpose of helping Raghuvanshi to get possession of the land. Even if it had a good defence, we do not think was bound to take it. It may be that if Land and Bricks had a defence and the defence was such which if brought to the notice of the court would have stood in the way of any decree being passed in favour of Raghuvanshi there would be reason to say that the omission to implead the sub-lessee was actuated by a dishonest purpose and consequently was improper. It is not necessary for us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub-lessee that land and bricks had even a plausible defence against Raghuvanshis claim for ejectment.” 30. It is not necessary for us however to consider the matter further as neither in the courts below nor before us was any suggestion made on behalf of the appellant sub-lessee that land and bricks had even a plausible defence against Raghuvanshis claim for ejectment.” 30. It is now well settled that even if the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act are applicable to a building in question the order of eviction in passed against the main lessee is binding on sub-lessee even though he is not impleaded as a party to the proceedings. Vide Natarajan v. Nachimuthu A.I.R. 1985 Madras 39 = 97 L.W. 347(D.B.) and the unreported judgment in O.S.A. No. 67 of 1989 dated 17.3.1989 Airmech Refrigeration & Air Conditioning Works and others v. B.P. Sastry and others . 31. The evidence of the respondent as P.W. 1 does not make out that there was any secret arrangement between Ramanathan and the appellant in order to defraud the respondent and get him evicted from the premises. In fact, the respondent admits in his evidence that there is no enmity between him and the appellant excepting with reference to the fact that the appellant wanted him to vacate the premises. 32. The Courts below have held that the building is a non-residential building and the appellant had claimed it to be a residential building and instituted the suit in a Civil Court instead of approaching the Rent Controller. That is relied upon as a circumstance to support the case of fraud. Another circumstance is the failure of the appellant to mark the trust deed as an exhibit in the suit. There was no necessity to mark the trust deed as such. In fact, I have referred to the circumstance that the trust deed was disclosed as a document in the list of documents appended to the plaint. The witness examined by the appellant in the suit on its behalf deposed that the trust was a public trust. As the defendant in that suit remained ex parte , there was no occasion for the appellant to file the trust deed and mark the same as an exhibit. Hence, no inference can be drawn from the circumstance that the trust deed was not exhibited in the earlier suit. 33. As the defendant in that suit remained ex parte , there was no occasion for the appellant to file the trust deed and mark the same as an exhibit. Hence, no inference can be drawn from the circumstance that the trust deed was not exhibited in the earlier suit. 33. Adverting to the other circumstance that the building was a non-residential building according to the respondent herein, I have already referred to the fact that the circumstance is irrelevant. However, to decide the question whether there was a fraud, I would advert to the relevant facts. Sufficient evidence has been placed before this court to show that the building is only a residential one. But, unfortunately, the courts below have overlooked the recitals in the documents produced by the appellant and taken the view that the documents prove the character of the building to be a non-residential one. Exs. B.5 to B.8 are the relevant documents. Ex. B.8 is a deed of lease between the trustees on the one hand and May & Baker (India) Limited on the other. Just because the lessee was a business concern, the Courts below have proceeded on the footing that the purpose of the lease was non-residential. There is an express recital in the document proving the contrary. Clause 5 of the lease deed reads thus:— “to use the premises as a dwelling apartment for one of its employees and not to do or suffer to be done in the premises anything which may become a nuisance or annoyance to the lessors.” Reliance is placed on another clause in the lease deed which gave an option to the lessee to sub-let the premises. But, the entire clause is not taken into account by the courts below. Under the said clause, option to sub-letting was given to the lessee subject to the condition that it should be done only with the approval of the lessors, which may not be reasonably withheld. Thus, any subletting without the approval of the lessor would not be protected by that clause. But, that is again irrelevant as the subsequent lease deed does not contain a clause giving an option to the lessee to sub-let. 34. The next document is Ex. B.5 dated 21st August, 1959, under which the trustees leased out the premises to Standard Vaccum Oil Company. But, that is again irrelevant as the subsequent lease deed does not contain a clause giving an option to the lessee to sub-let. 34. The next document is Ex. B.5 dated 21st August, 1959, under which the trustees leased out the premises to Standard Vaccum Oil Company. The first clause itself describes the premises as one storeyed dwelling house with one garage. The purpose of the lease is expressly said to be residential, under Clause 2(g) of the document. Under Clause 4(a), the tenant was given liberty to provide living accommodation in the demised premises for such members of its staff or other non-members as it may deem fit; but in the latter event, the consent of the landlord should be obtained previously. Thus, the document made it clear that it was only a residential lease and not a non-residential lease. It is to be noted that there is no clause permitting the lessee to sub-let the premises. 35. Ex. B.7 dated 26.3.1963 signed by an advocate of this court on behalf of Sri Panchu Arunachalam is the next document. The document is only a statement regarding the condition of electric installations and Other equipments in the building. It is an acknowledgment for having taken possession of the suit building on behalf of Sri Panchu Arunachalam. That document does not show that the lease is one for non-residential purpose. 36. The next document is Ex. B.6, which is a letter by the same advocate addressed to D.W. 1 dated 20.9.1966. Under that letter, the trustee was requested to take steps to transfer the tenancy in the same of T.P. Ramanathan, who was occupying the building at that time and paying rent. The trustee was also requested to depute some overseer to inspect the building and to carry out necessary repairs. According to the appellant, there is no deed of lease between Ramanathan and the trust. The courts below have refused to accept the appellants version on the footing that the appellant being a trust, there should have been a document and hot stopping with it, the courts below have proceeded to draw an adverse inference against the appellant. Such an adverse inference is wholly unwarranted. There is nothing on record to show that there should have been a document of lease between Ramanathan and the trust. Such an adverse inference is wholly unwarranted. There is nothing on record to show that there should have been a document of lease between Ramanathan and the trust. Hence, the courts below are in error in holding that there was a deed and the non-production thereof would lead to an adverse inference against the trust. At any rate, there is nothing on record to show that the lease was only for non-residential purpose and not for residential purpose. If the earlier lease deeds are taken into account, it with be clear that the building is a residential one and an inference can be drawn in favour of the trust that the lease in favour of Ramanathan was also one for residential purposes. In fact, the letter of the Advocate refers merely to the individual Ramanathan and states that he is occupying the building. In the absence of any other evidence, an inference can be drawn from the said letter that the lease in favour of Ramanathan was for residential purposes. 37. Thus, the documentary evidence adduced by the appellant in the present case undoubtedly prove that the building is only a residential one and not a non-residential premises. If any of the occupants had used the same for any non-residential purpose, it was only an unauthorised user and that did not in any way prevent the owner of the building from treating it as a residential one and taking proceedings on that footing. The appellant was, therefore, right in instituting suit in the civil court on the ground that the building was exempted under S. 30 of the Tamil Nadu Buildings (Lease and Rent Control) Act, as the law stood then. That cannot betaken as a circumstance to prove collusion or fraud between the appellant and Ramanathan. Hence, the courts below are in error in drawing an inference of collusion and fraud by the institution of a suit in the civil court and the appellants failure to approach the Rent Controller. 38. I have already pointed out that the decree in O.S. No. 4439 of 1975 is binding on the respondent as even according to him, he is only a sub-tenant. Apart from that, the present suit is barred by the principle of Res Judicata . 38. I have already pointed out that the decree in O.S. No. 4439 of 1975 is binding on the respondent as even according to him, he is only a sub-tenant. Apart from that, the present suit is barred by the principle of Res Judicata . Explanation VII to S. 11 of the Code of Civil Procedure is as follows:— “The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively to a proceeding for the execution of the decree, questions arising in such proceeding and a former proceeding for the execution of that decree.” I have already referred to the fact that the respondent contested the application filed by the appellant to remove obstruction and the executing court rejected his contentions. The decisions of the executing court will operate as Res Judicata and bar the present suit. 39. It is also contended by learned counsel for the respondent that the present suit is barred by limitation. Under Article 59 of the Limitation Act, the period of limitation for setting aside the decree is three years from the date when the facts entitling the plaintiff to have the decree set aside became known to him first. In this case, the respondent became aware of the decree on 10.7.1978 when the bailiff visited the property and attempted to deliver possession to the appellant. The present suit is filed only on 12.1.1983. It is, thus, beyond the period of limitation and the suit is, therefore, barred. It can be certainly contended that the respondent is not seeking to set aside the decree but only seeking a declaration that the decree is null and void vitiate by fraud and collusion. I have held that the court which passed the decree had jurisdiction to pass the same and, therefore, it is not null and void. Once it is found that the decree is not null and void, it is incumbent upon the respondent to pray for setting aside the decree. He seeks to do so on the ground of fraud and collusion. Once it is found that the decree is not null and void, it is incumbent upon the respondent to pray for setting aside the decree. He seeks to do so on the ground of fraud and collusion. On the facts, I have found that fraud and collusion are not made out, and even assuming that the respondent has made out a case of fraud and collusion, the suit is clearly barred by limitation as it is filed beyond the period prescribed under Article 59 of the Limitation Act. 40. Learned counsel for the respondent contended that the definition of tenant in the Tamil Nadu Buildings (Lease and Rent Control) Act would include a sub-tenant. According to him, the judgment of this court in Natarajan v. Nachimuthu Chettiar and another 97 L.W. 347 is wrong. He also contended that on the facts of this case, there was a written permission to Ramanathan to sublease the premises and the sub-lease in favour of the respondent was, therefore, a valid and authorised one with the result that he was entitled to claim the benefits of the Tamil Nadu Buildings (Lease and Rent Control) Act. He placed reliance on the judgment of the Supreme Court in Raval and Co. v. K.G. Ramachandran and others A.I.R. 1974 S.C. 818. Neither of the contentions is available to the respondent, as I have held that the decree in O.S. No. 4439 of 1975 is binding on him and the civil court had jurisdiction to decide the same. I have also held that the trust is a public trust and the suit property is not one governed by the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. The property is exempted from all the provisions of the Act. Hence, the respondent cannot place any reliance on the provisions of the Act and invoke the benefits thereof. Thus, there is no necessity for me to state that the contentions of learned counsel for the respondent above referred to do not have any substance. 41. In the result, the appeal has to be allowed and the suit filed by the respondent has to be dismissed. The second Appeal is allowed. The judgment and decrees of the Courts below are set aside. 41. In the result, the appeal has to be allowed and the suit filed by the respondent has to be dismissed. The second Appeal is allowed. The judgment and decrees of the Courts below are set aside. The suit O.S. No. 436 of 1983 filed by the respondent herein on the file of the XII Assistant Judge, City Civil Court, Madras, is dismissed with costs throughout. 42. Learned counsel for the appellant apprehends that the injunction granted during the pendency of the proceedings in the courts below restraining him from executing the decree might be utilised by the respondent for delaying and dragging on the matter. It is needless to say that the injunction is no longer in force and in view of the dismissal of the suit, it is open to the appellant to execute the decree and recover possession from the respondent. 43. C.M.P. No. 13010 of 1991 is ordered. The original trust deeds will be required by the appellant for other purposes. There is no necessity for keeping them on record. A printed copy in book form has been filed along with them and it contains both the trust deeds. The Court Officer is directed to retain the printed copy of the trust deeds and return the original trust deeds to learned counsel for the appellant. Similarly, a xerox copy of the original sale certificate dated 23.9.1925 has been filed by the appellant. The Court Officer is directed to retain the xerox copy on file and return the original sale certificate to counsel for the appellant. 44. C.M.P. No. 11725 of 1991. In view of the disposal of the Second Appeal, this application is dismissed. Exhibits filed in the High Court:— Ex. B.11(a) - Copy of the Registered Deed of Trust dated 14-7-1913 executed by Mandayam O. Parthasarathy Iyengar; (b) - Copy of the Supplementary Trust deed executed by Mandayam O. Parthasarathy Iyengar dated 21.3.1920. Ex. B.12 - Xerox copy of the Sale Certificate dated 23.9.1925.