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PETITIONER: BAHADUR SINGH & ANR.

       Vs.

RESPONDENT: MUNI SUBRAT DASS & ANR.

DATE OF JUDGMENT: 16/10/1968

BENCH:

ACT:     Code of Civil Procedure (Act 5 of 1908) s. 47--Decree in terms of Arbitration Award passed--Objection to validity, if can be raised.  Indian Arbitration Act (10 of 1940) ss.  14, 17,  31,  32  and  33--Delhi and Ajmer Rent Control Act  (38 of   1952)  s.  13--Decree   contravening s. 13, if  can  be enforced.

HEADNOTE:     The tenants occupying the ground floor of a building set up a workshop therein.  According to the landlord’s  son--M, who resided in the first floor, the workshop was a  nuisance and  caused  him great annoyance. M and  tenants  agreed  to refer  the dispute to arbitration.  The landlord was  not  a party to the agreement.  The award directed that the tenants would  run  workshop  up to certain  time   and’  thereafter remove   the  machinery.  and  on  that  day  give.   vacant possession  of the ground floor to the landlord.  The  award was  signed by the arbitrators, the tenants, and M,  and  it was  attested by the landlord.  It was filed in Court  under s.  14 of the Arbitration Act.  The tenants and M stated  in Court  that they had no objections against the  award.   The Court  pronounced judgment according to the award and decree followed.  On the expiry of the date fixed for removing the, machinery and for vacating the premises, M and the  landlord jointly applied for the execution of the decree. The tenants objected  under  s.  47,  Code of  Civil  Procedure  to  the execution  contending  that (i)  the award was  beyond  the, scope  of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act,  1952 and  was void; and (iii) the landlord could not execute  the decree.     HELD:  (i) The award was filed in Court under s.  14  of the  Arbitration  Act and on notice to the  tenants  and  in their  presence a decree was passed according to  the  award under  s. 17.  It was not open to the tenants then  to  take the objection that the award was in excess of the  authority on the arbitrators or was otherwise invalid.  Having  regard to  the  scheme of ss, 14 to 17 and 31 to 33  all  questions regarding the validity of the award had to be determined  by the  Court  in  which the award was filed and  by  no  other Court.   An award which is invalid on any ground can be  set aside  under s. 30.  After a decree is passed on the   award it   is  not  open  to  the parties  to  the  reference   to raise  any  objection as to the validity of the  award.   As between  them  the decree conclusively determines  that  the award  is  valid. Nor can the decree be pronounced to  be  a nullity oh the ground that the award was invalid. [435 E--G]

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   Rabindra  Deb  Manna v..Jogendra Deb Manna  A.I.R.  1923 Cal.  410,  and  Shib Kristo Daw v.  Sottish  Chandra   Dutt (1912)  39  Cal.  822. approved.     (ii)  The  decree  for delivery  of  possession  to  the landlord  was   a  nullitv  and could  not  be  enforced  in execution.   Section  13(1)  of the  Delhi  and  Ajmer  Rent Control  Act,  1952 prohibited the  Court,  from  passing  a decree  or order for recovery of possession of any  premises in 433 favour of a landlord against a tenant except in such a  suit or proceeding instituted by the landlord against the  tenant for  recovery  of possession on one of  the  grounds  stated therein, and unless the Court was satisfied that a ground of eviction existed.  The decree in the present case was on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant.  The Court passed the decree according to an award under s. 17 of the  Arbitration Act,  1940 in a proceeding to which the landlord was  not  a party  without satisfying itself that a ground  of  eviction existed. [436 C--E]      Peachey  Property  Corpn.  vs.Robinson   [1966]  2  All E.R.981, applied.      (iii)  The decree in so far as it directed the  removal of  the machinery from the premises was clearly.  valid  and separable from the rest of the decree and could be  executed by M.

JUDGMENT:      CIVIL APPELLATE JURISDICTION: Civil. Appeals Nos. 2464- and 2465 of 1966.      Appeal from the judgment and order dated April 8,  1964 of the Punjab High Court, Circuit Bench at Delhi in  Letters Patent Appeal No. 75-D of 1962.      M.C.  Chagla  and Lily Thomas, for the  appellants  (in C.A.  No.  2464 of 1966) and the respondents (in  C.A.  Nos. 2465 of 1966).      A.K.  Sen  and 1. N. Shroff, for the  respondents   (in C.A.  E  No. 2464 of 1966) and the appellants (in  C.A.  No. 2465 of 1966).       The Judgment of the Court was delivered by       Bachawat,  J. One Mehtab Singh, the landlord,  is  the owner  of  the premises No. 279, situate  in  Dariba  Kalan, Delhi.  His  son Muni Subrat Dass resides on the first floor while  the  ground  F  floor is in  the  occupation  of  the tenants,  Bahadur Singh  and Daryao Singh where they set  up a   workshop  and  installed  machinery  for   manufacturing purposes.   According  to Muni  Subrat the  workshop  was  a nuisance  and caused him great  annoyance. He made a  number of  complaints to the Municipal  Committee for  stoppage  of the  nuisance.   On June 10, 1954, Muni Subrat  G   and  the tenants  agreed  in writing to refer the  disputes   between them  to  the  arbitration of-two  named  arbitrators.   The landlord was not a party to the agreement.  The  arbitrators made  their award on July 14, 1954. The award directed  that (i)  Muni  Subrat would withdraw the  applications   pending before.  The Municipal Committee; (ii) the tenants would  be at  liberty  to run the workshop during the  day  time  upto December  31,  1957; (iii) on January 1, 1958,  the  tenants would  remove  the  machinery; (iv) on the  same  date  they would  give  vacant possession of the ground  floor  to  the landlord and (v) the tenants would pay rent 434

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to landlord for the period of their occupation.  .The  award was  signed  by  the  arbitrators and  the  parties  to  the reference and was attested by the landlord.  It was filed in COurt  under s. 14 of the Arbitration Act, 1940.  On  August 26,  1954, the tenants and Muni Subrat stated in Court  that they had no objections against the award.  On the same  date the  Court pronounced judgment according to the award and  a decree followed accordingly.  On August 23, 1958 Muni Subrat and the landlord jointly applied for execution of the decree ‘for   delivery   of  possession  of   the   premises.    In anticipation  of  the  application  for  execution  of   the decree, on January 9, 1958 the tenants filed an  application under  sec.  47 of the Code of Civil Procedure  raising  the following  objections to the execution of the decree  as  to the delivery of possession of the premises to the  landlord: (i) the award was beyond the scope of the reference and  was invalid and the decree based on the invalid award was  void; (ii)  the decree was passed  in contravention of  the  Delhi and  Ajmer Rent Control Act, 1952 (Act No. 38 of  1952)  and was  void;  and  (iii) the landlord could  not  execute  the decree.      The  Subordinate Judge, First Class,  Delhi,  dismissed the objection.  He held that (i) that the objection that the award  was  without jurisdiction could not be  raised  under sec.  47; (ii)  the  decree was not in contravention of  the Rent  Act; and (iii)  the  landlord was entitled to  execute the   decree.On   appeal,the  Additional  Senior  Sub-Judge, Delhi, held that (i) the question as to the validity of  the award  could not be agitated in the  execution  proceedings; (ii)    the   decree   for   eviction   was     passed    in contravention  .of  the Rent Act and was  void;  (iii)   the appeal  against the order allowing the landlord  to  execute the decree was incompetent and (iv) Muni Subrat was entitled to  execute  the decree for removal of the machinery but  he could not  execute the decree for eviction.  In the  result, he  dismissed the appeal in part so far ’as it was  directed against  the  landlord, allowed the appeal in  part  against Muni  Subrat  and declared that he could get  the  machinery removed  but he could not claim eviction.  The  tenants  and the decree-holders filed two separate appeals in the  Punjab High  Court  at Delhi.  Gurdev Singh 1. held  that  (i)  the first  appeal  filed  against the order  in  favour  of  the landlord was competent; (ii) the decree for eviction did not contravene   the  provisions of the Rent Act and  (iii)  the landlord  was entitled. to execute the decree for  eviction. In  the result, he accepted the decree-holder’s  appeal  and dismissed the tenant’s  appeal.  The tenants filed an appeal under clause 10 of the Letters Patent.A Divisional Bench  of the  High Court held that (1) the objection to the  validity of  the  award  could not be entertained  in  the  execution proceedings; (2) the decree directing delivery of possession of the-premises to the landlord was passed in contravention of  the  Rent Act; (3)neither the landlord nor  Muni  Subrat could 435 enforce  that part of the decree; (4) the  decree  directing removal  of  the machinery was ’separable and was  void  and Muni Subrat was entitled to execute it.  In the result,  the DiviSional Bench allowed the appeal and restored the   order of   the   Additional Senior Sub-Judge, Delhi.   In  passing this  order the Bench overlooked that  the  Senior-Sub-Judge had   dismissed   the  appeal  against   the   landlord   as incompetent.   Having  regard to the fact  that  the  appeal against the landlord was competent, the  Bench  should  have also  set  aside  the order  favouring  the  landlord.   The

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present  appeals have been filed by the tenants as  also  by the  landlord and Muni Subrat after  obtaining  certificates from the High Court.      The  following points arise for determination in  these appeals,  (1) Can the objection as to the’ validity  of  the award be raised after a decree is passed’ on the award,  and can  the decree be pronounced to be a nullity on the  ground that  it  was based on an invalid award; (2) Is  the  decree directing the tenants to deliver possession of the  premises to  the landlord a nullity on the ground that it was  passed in contravention of the Rent Act; (3) Is this portion of the decree enforceable either by the landlord or by Muni Subrat; and  (4) Is the decree so far as it directs removal  of  the machinery valid and enforceable by Muni Subrat.     The  award  was  filed  in Court  under  s.  14  of  the Arbitration  Act and on notice to the tenants and  in  their presence  a decree, was passed according to the award  under s.  17.   It  is not Open to the tenants  now  to  take  the objection that the award was in excess of the ’authority  of the  arbitrators or was otherwise invalid. Having regard  to the  scheme  of ss. 14 ’to 17 and 31 to  33  all’  questions regarding the validity of the award had to be determined  by the  Court  in  which the award was filed and  by  no  other Court.  An award which is invalid on any ground can  be  set aside under s. 30.  After a decree is passed on the award it is  not’ open to the parties to the reference to raise  any’ objection  as  to’ the validity’ of the award.   As  between them  the decree conclusively determines that the  award  is valid.  Nor can the decree be pronounced to be a nullity  on the ground that’ the award  was  invalid.A decree passed  on an  invalid award in arbitrations in suits under the  second schedule to the Code of Civil’ Procedure, 1908, stood on the same  footing,  see   Rabindra Deb  Manna  v.  Jogendra  Deb Manna(1) where  Rankin, ’1. ’observed: "An award made out of time,  Or  otherwise ’invalid, is no longer  a  nullity   it is’liable  to  be set aside by the Court, but,  if  not  set aside,  a  decree made for its enforcement  is  not  without jurisdiction, Shib Kristo  Daw v. Satish Chandra Dutt (1912) 39 Cal. 822."     The  next question is whether the decree  directing  the tenant to deriver possession-of the premises to the landlord was. passed A.I.R. 1923 Cal. 410, 413. 436 in  contravention  of s. 13 (1) of the Delhi and  Ajme  Rent Control   Act,   1952.  That  sub-section   provided   that: "Notwithstanding  anything to the contrary contained in  any other  law  or  any contract, no decree  or  order  for  the recovery  of possession of any premises shall be  passed  by any  Court  in  favour of the landlord  against  any  tenant (including a tenant whose tenancy is  terminated):  Provided that nothing in this sub-section shall apply to any suit  or other  proceeding  for such recovery of  possession  if  the Court  is satisfied.." Then followed a catalogue of  grounds on  which  the decree for recovery of  possession  could  be passed. The other sub-sections to s. 13 showed that a decree or  order could be passed on one of those grounds in a  suit or  proceeding  instituted by a landlord against  a  tenant. Section 13 (1) prohibited the Court from passing a decree or order  for recovery of possession of any premises in  favour of  a  landlord against a tenant except in such  a  suit  or proceeding and unless the Court was satisfied that a  ground of eviction existed.  Now the decree in the present case  is on  the  face of it one for recovery of  possession  of  the premises  in  favour of a landlord against  a  tenant.   The

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Court passed the decree according to an award under s. 17 of the  Arbitration  Act,  1940 in a proceeding  to  which  the landlord  was not a party without satisfying itself  that  a ground of eviction existed. On the plain wording of s. 13 (1 ) the Court was forbidden to pass the decree.  The decree is a nullity and cannot be enforced in execution.     The  contusion that a decree passed in contravention  of s.  13  (1)  is a nullity is supported by  the  decision  in Peachey  Property  Corpn. v. Robinson(1). In that  case  the landlords issued a writ to recover possession of a flat  let to  tenants who resided there for non-payment of  rent.   No appearance was entered and judgment was signed in default of appearance.   On an  application  for leave to issue a  writ for  possession,  the  Court held that the  judgment  was  a nullity  as it was given without any determination  that  it was reasonable to do so in contravention of s. 3 (1) of  the Rent  and  Mortgage Interest Restrictions  (Amendment)  Act, 1933.  As  the decree was a nullity  the  Court  refused  to issue a writ for possession. Winn, L.J. said :--                   "Accordingly,the    Rent   and    Mortgage               Interest  Restrictions (Amendment) Act,  1933,               s.  3(1) was made to apply to  these  premises               and that sub-section provided:                   ’No Order or judgment for the recovery. of               possession of any dwelling house to which  the               principal Acts apply or for the ejection of               a tenant therefrom shall be (1) [1966] 2 All E,R. 981, 983. 437               made  or given unless the Court  considers  it               reasonable to make such an order or give  such               a judgment..               and..  "     One or other of two additional conditions is  satisfied. It is perfectly plain from what I have said that before  the judgment  in  default of appearance was  entered  no   court had  determined  whether it was reasonable to make  such  an order  or  give such a judgment. In my view,  therefore,  by express  force  of that section the judgment in  default  of appearance  here  was a nullity. It was,  according  to  its terms,  a  judgment  for recovery  of  possession  of  these premises, and that is something which the section  prohibits unless  there  has been a prior determination by  the  court that it was reasonable to give such a judgment."     As  the  decree for the delivery of  possession  of  the premises to the landlord is a nullity it cannot be  enforced or executed either by the landlord or by the landlord’s  son Muni   Subrat.   The  decree in so far  as  it  directs  the removal of the machinery from the premises is clearly  valid and  separable  from  the rest of  the  decree  and  may  be executed by Muni Subrat.     In the result, it is declared that (a) the objections as to  the validity of the award cannot be entertained  in  the execution  proceedings;  (b)  the decree in so  far,  as  it directs  delivery  of  possession of  the  premises  to  the landlord is a nullity and cannot  be executed either by Muni Subrat or by Mehtab Singh and (c) the decree in so far as it directs  removal  of  the machinery is   valid  and  may  be executed  by  Muni  Subrat.   Subrat  to  the   declarations mentioned above the appeals are dismissed.  There will be no order as to the costs in this Court. Y.P.                                      Appeals dismissed. 438

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