LexBALVANT N. VISWAMITRA AND ORS. versus YADAV SADASHIV MULE (D) THROUGH LRS. AND ORS.
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BALVANT N. VISWAMITRA AND ORS. A v. Y ADA V SADASHIV MULE (D) THROUGH LRS. AND ORS. AUGUST 13, 2004 [R.C. LAHOTI, CJ., G.P. MATHUR AND C.K. THAKKER, JJ.] B Code of Civil Procedure, 1908 : Sections 2(2), 33 and 47-Decree-Null and voidll"egular or wrong- Distinction between-Held : Decree or order passed by a court having no C jurisdiction is nullity and can be challenged at any stage, even in execution or collateral proceedings-All irregular or wrong decree or orders are not necessarily null and void-An erroneous decrees which is not void cannot be challenged in execution or collateral proceedings. Order 1, Rule 9 and sections 2(2) and 33-Suit for possession by D landlord against heirs and legal representatives of tenant-Suit decreed in favour of landlord-Execution proceedings-Obstructions by third party who are claiming through tenant-Third party pleading that as decree passed without proper notice and they were not impleaded as necessary parties, decree a nullity and would not bind them-Held : From records E it is clear that landlord made all attempts to serve defendants, there was presumption of service of notice-Defendants being aware of the proceedings, failed to make appearance-Advocate engaged by defendants appeared, also cross-examined the plaintiff, later withdrew his appearance for want of instructions-Thus, in the light of these facts, decree was passed F by the competent court, as such decree cannot be said to be a nul/ity- Further, there being no privily of contract between landlord and the third party, they were necessary parties to the suit-Hence, order of High Court that decree null and void, set aside and decree passed by courts below restored. Appellants' father - landlord let out the land owned by him on rent to P who constructed hut over the land. He defaulted in paying rent and arrears of rent accumulated for a period of thirteen years. Since P died, proceedings were initiated against heirs of deceased P. G It is appellant's case that they issued notice regarding termination of H 519 520 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R. A tenancy to the heirs and legal representatives of deceased P by registered post whicb came back unserved. Then notice was sent under certificate of post whic!L did not come back. Again, notice was fixed on suit premises. Appellants also made an attempt to get names and addresses of heirs of deceased A, son of deceased P but did not get any B information. Thereafter, appellants filed suit for possession against heirs and legal representatives of deceased P. When case was fixed for recording evidence, Advocate appeared on behalf of defendants and evidence of plaintiff No. 2 was recorded in his presence. He also partly cross-examined plaintiff No. 2. However, the defendants remained C absent· in the proceedings. On the next date of hearing, the Advocate withdrew his appearance since he did not have instructions from the client. Accordingly, trial court decreed the suit and ordered defendants to vacate and handover the possession. Thereafter, execution proceedings were initiated, but the third party-respondents caused obstructions D and filed an appeal against the decree passed by trial court and the order passed on thl! obstruction notice. Appellate Court dismissed the E appeal, however stayed execution of warrant of possession. Respondents then filed a writ petition. Single Judge of High Court allowed the petition holding the decree to be void ab initio for non-joinder of respondents as party in the suit. Hence, the present appeal. Appellant contended that inspite of best efforts they could not get the names, addresses and other information regarding heirs and legal representatives of Pandas such were constrained to initiate proceedings against the heirs and legal representatives of deceased P; that the F defendants were aware of the proceedings and had engaged an Advocate who was appearing in the matter and was present when evidence of plaintiff No. 2 was recorded and also when he partly cross- examined plaintiff No. 2; that on the next date of hearing, the Advocate withdrew his appearance as he had 'no instructions' from the defendants G and in the light of these acts, a decree passed by a court of competent jurisdiction cannot be said to be a nullity; that the respondents cannot challenge legality and validity of the decree passed against the heirs of P as they did n<!t claim to be the heirs and lega
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