LexRAFIQUE BIBI (D) BY LRS. versus SYED WALIUDDIN (D) BY LRS. AND ORS.
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A
RAFIQUE BIBI (D) BY LRS.
v.
SYED WALIUDDIN (D) BY LRS. AND ORS.
AUGUST 28, 2003
B
[R.C. LAHOTI AND ASHOK BHAN, JJ.]
Rent Control and Eviction:
Delhi and Ajmer Rent Control Act, 1952; Section 13(/){a)/Rajasthan
c Premises (Control of Rent and Eviction) Act, 195C; Section 13(/){a):
Eviction Petition under the Delhi and Ajmer Act on the ground of default
in payment of rent-Decreed by High Court-Reorganisation of States-
The Rajasthan Act became applicable to suit premises-Execution of the
decree-Tenant raising objections that the Court did not afford him
D
opportunity in terms of certain privileges conferred as per provisions of
Rajasthan Act-The decree was without jurisdiction and nullity and cannot
be executed-Overruled by the executing Court-On appeal, held, the
executing Court cannot go behind the decree unless the Court passing the
decree usurped a jurisdiction-Mere wrong exercise of jurisdiction does
not make the decree a nullity-Plea of jurisdiction since not taken by the
..
E tenant before passing of the decree, it cannot be urged during the execution
proceedings-Practice and Procedure.
Words and Phrases:
F
'illegal decree '-Meaning of
Respondent-Ian_.. :ird filed an eviction petition against the
appellant-tenant for default in payment of rent under Section 13(1)(a)
ofthe Celhi and Ajmer Rent Control Act High Court decreed the suit
In execution proceedings the tenant-judgment debtor raised objections
G that the area where suit premises situate became part ofRajasthan due
to reorganization of the State ofRajasthao during pendency of the suit
Therefore, provisions of the Rajasthan Premises (Control of Rent and
Eviction) Act became applicable and consequently, the privilege
conferred under the provisions of the Rajasthan Act should have been
H afforded to him. Since the Court did not afford him opportunity, the
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RAFIQUE BIBI v. SYED WALIUDDIN
101
decree was without jurisdiction and hence a nullity and as such could A
not be executed. The objections were overruled by the executing Court
and the order was affirmed by the High Court. Hence the present
appeal.
It was contended for the appellant-tenant that
0
the. protection to B
tenants conferred by the Rajasthan Act must be given full effect to
protect him from eviction; and that the decree passed by the Court
without complying with the provisions of law would be a nullity and
could not be executed.
On behalf of the respondent-landlord, it was submitted that a C
decree is inexecutable provided it was held to be without jurisdiction;
and that in order to avail benefit of purging the effect of default, the
tenant had to make an application to the Court for availing of such
benefits. In case, he failed to do so, later he cannot be allowed to claim
the same.
D
Dismissing the appeal, the Court
HELD: I.I. A decree can be said to be without jurisdiction, and
hence a nullity, if the Court passing the decree has usurped a
jurisdiction which it did not have; a mere wrong exercise of jurisdiction E
does not result in nullity. The lack of jurisdiction in the Court passing
the decree must be patent on its face in order to enable the executing
Court to take cognizance of such nullity based on want of jurisdiction;
else the normal rule that an executing Court cannot go behind the
decree must prevail. (104-D-E)
F
1.2. A decree suffering from illegality or irregularity of procedure,
cannot be termed inexecutable by the executing Court; the remedy of ·
a person aggrieved by such a decree is to have it set aside in a duly
constituted legal proceedings or by a superior Court failing which he G
must obey the command of the decree. A decree passed by a Court
of competent jurisdiction cannot be denuded of its efficacy by any
collateral attack or in incidental proceedings. [105-8)
Vasudev Dhanilbhai Modi v. Rajabhai Abdul Rehman & Ors., (1970)
I sec 670, relied on.
H
102
SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.
\,
A
Administrative Law by Wade and Forsyth (8th Edition, 2000, p. 308),
referred to.
1.3. It is not the case of the tenant that the Court which passed the
decree did not have the jurisdiction to do so. It is also not their case that
B a ground for eviction of the tenants on the ground of default in payment
of arrears of rent was not available to the landlord-respondents within
.
the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act.
It was for the tenants to havExcerpt shown. Read the full judgment & AI analysis in Lexace.