http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: VASUDEV DHANJIBHAI MODI

       Vs.

RESPONDENT: RAJABHAI ABDUL REHMAN & ORS.

DATE OF JUDGMENT: 18/03/1970

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HEGDE, K.S. GROVER, A.N.

CITATION:  1970 AIR 1475            1971 SCR  (1)  66  1969 SCC  (1) 670

ACT: Execution  proceedings--Circumstances in which  question  of jurisdiction of court passing decree can be raised.

HEADNOTE: The  appellant who was the landlord of certain  premises  in Ahmadabad,  filed  a suit against M for ejectment  from  the premises,and  for an order for payment of rent..  The  trial court  dismissed  the suit in appeal.   The  District  Court passed  a  decree in ejectment and further  appeals  against that decision were rejected. In  proceedings filed by the appellant for execution of  the decree, M contended that the court of Small Causes which had tried  the suit ’had no jurisdiction to entertain it as  the suit  premises were not governed by Bombay Act 57  of  1947. The  court  executing the decree rejected  this  contention. The  order  was confirmed by a Bench of the Court  of  Small Causes.  The High Court of Gujarat in a petition filed by  M under  Article  227 of the Constitution,  ordered  that  the petition for execution ,be dismissed. On appeal to this Court, HELD : The appeal must be allowed and the order of the Court of Small Causes restored. When a decree which is a nullity, for instance, where it  is passed  without  bringing the legal representatives  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  it, 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  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. [68 F] In the present case the question whether the Court of  Small

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Causes  had  jurisdiction to entertain the  suit  against  M 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.  These 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. [69 B] Jnanendra Mohan Bhaduri & Anr. v. Rabindra Nath Chakravarti, 60 I.A. 71; referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 406 of 1967. 67 Appeal  by special leave from the judgment and  order  dated August 22, 23, September 10, 1966 of the Gujarat High  Court in Special Civil Application No. 371 of 1965. I. N. Shroff, for the appellant. R.   Gopalakrishnan and J. M.  Thacker, for respondent No.1. The Judgment of the Court was delivered by Shah,  J. Vasudev Dhanjibhai Modi is the owner of  Plot  No. 15/3  of  Jamalpur Town Planning Scheme,  Ahmedabad.   Since 1948  Rajabhai Munshi was a tenant of the land at an  annual rental of Rs. 411/-.  Alleging that Munshi committed default in  payment of rent, Modi instituted a suit in the Court  of Small  Causes, Ahmedabad, for an order in ejectment and  for payment  of rent in arrears.  Munshi deposited in  Court  an amount  which he claimed satisfied the liability to pay  the rent in arrears.  The Court of first instance dismissed  the suit.   In  appeal to the District Court  at  Ahmedabad  the order  of  the Court of First Instance was  reversed  and  a decree in ejectment was passed in favour of Modi.  The order was  confirmed  in a revision application filed  before  the High  Court  of  Bombay.  A petition for  special  leave  to appeal against that order was granted by this Court but  was later  vacated when it was found that Munshi had made  false statements in his petition. In the meanwhile Modi applied for execution of the decree in ejectment against Munshi.  Munshi raised the contention that the  Court of Small Causes had no jurisdiction to  entertain the  suit  and  its decree was on that  account  a  nullity. According  to Munshi the suit premises were not governed  by the  Bombay Rents Hotel & Lodging House Rates (Control)  Act 57 of 1947, and that in any event Parts II & III of that Act did not apply to open land and on that account the decree of the  High Court confirming the decree of the District  Court was  without jurisdiction.  The Court executing  the  decree rejected the contention.  An appeal against that order to  a Bench of the Court of Small Causes was also unsuccessful. But  in a petition under Art. 227 of the Constitution  moved by Munshi the High Court of Gujarat (that High Court having, by  virtue  of the provisions of the  Bombay  Reorganisation Act, 1960, acquired jurisdiction to deal with and dispose of the  case) reversed the order of the Court of  Small  Causes and  ordered that the petition for execution  be  dismissed. With special leave, Modi has appealed to this Court. The  expression  "premises" in s. 5(8) of the  Bombay  Rents Hotel  & Lodging House Rates (Control) Act 57 of  1947  does not 68 include premises used for agricultural purposes.  By s. 6 of that  Act  the  provisions  of  Part  II  which  relate   to conditions in which orders in ejectment may be made  against tenants and other related matters apply to premises let  for

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

education, business, trade or storage.  It is plain that the Court  exercising  power  under the  Bombay  Rents  Hotel  & Lodging House Rates (Control) Act, 1947, has no jurisdiction to  entertain  a  suit  for  possession  of  land  used  for agricultural  purposes.  Again in ascertaining  whether  the land demised is used for agricultural purposes, the  crucial date  is  date on which the right conferred by  the  Act  is sought  to be exercised: Mst.  Subhadra v. Narasaji  Chenaji Marwadi(1). In  this  case  the suit for ejectment  against  Munshi  was instituted  by  Modi  in  the Court  of  Small  Causes.   No objection  was raised that the Court had no jurisdiction  to entertain  the suit.  The objection was not raised  even  in appeal,  nor  before  the  High  Court.   The  Trial   Court dismissed  the suit on merits : the decree was  reversed  by the District Court and that decree was confirmed by the High Court.  The objection was raised for the first time when the decree was sought to be executed. A  Court  executing a decree cannot go behind the  decree  : between  the parties or their representatives it  must  take the decree according to its tenor, and cannot entertain  any objection that the decree was incorrect in law or on  facts. Until it is set aside by an appropriate proceeding in appeal or  revision,  a  decree even if it be  erroneous  is  still binding between the parties. When a decree which is a nullity, for instance, where it  is passed  without  bringing the legal representatives  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  it, 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  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  Jnanendra Mohan  Bhaduri & Anr. v. Rabindra Nath Chakravarti  (2)  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  pro- ceeding that the decree was made without jurisdiction, since under (1) [1962] 3 S.C.R. 98. (2) L.R. 60 I.A. 71. 69 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. In the present case the question whether the Court of  Small Causes had jurisdiction to entertain the suit against Munshi depended  upon  the  intepretation  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.   These  questions cannot be permitted to be raised in an execution  proceeding so as to displace the jurisdiction of the Court which passed the  decree.   If the decree is on the face  of  the  record without jurisdiction and the question does not relate to the territorial jurisdiction or under s. 11 of the Suits  Valua- tion Act, objection to the jurisdiction of the Court to make

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

the  decree  may  be  raised;  where  it  is  necessary   to investigate  facts in order to determine whether  the  Court which had passed the decree had no jurisdiction to entertain and  try  the suit, the objection cannot be  raised  in  the execution proceeding. The High Court was of    the view that where   there is lack of  inherent  jurisdiction in the Court which  passed    the decree, the executing Court must refuse to execute it on the ground that the decree is a nullity.  But, in our  judgment, for  the  purpose  of determining whether  the  Court  which passed  the decree had jurisdiction to try the suit,  it  is necessary  to determine facts on the decision of  which  the question depends’, and the objection does not appear on  the face  of the record, the executing Court cannot  enter  upon and enquiry into those facts.  In the view of the High Court since the land leased was at the date of the lease used  for agricultural   purposes   and  that  it   so   appeared   on investigation  of the terms of the lease and other  relevant evidence,  it was open to the Court to hold that the  decree was without jurisdiction and on that account a nullity.  The view  taken  by the High Court, in our judgment,  cannot  be sustained. The  appeal  is ’Allowed and the order passed  by  the  High Court is set aside.  The order of the Court of Small  Causes is  restored.  The respondent Munshi will pay the  costs  of the appellant throughout. R.K.P.S.                         Appeal allowed. 70