LexVASUDEV DHANJIBHAI MODI versus RAJABHAI ABDUL REHMAN & ORS.
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V ASUDEV DHANJIBHAI MODI V, RAJABHAI ABDUL REHMAN & ORS. March 18, 1970 [J. C. SHAH, K, S. HEGDE AND A. N. GROVER, JJ.J Execution proceedings-Cii·cun1stances in which question of iurisdic- 11ion of court pt1ssing decree can be raised. The appellant who was the landlord of certain premises in Ahmad- abad, filed a suit against M for ejectment from the premises, and for A B Jn order for payment of rent. The trial court dismissed the suit in C ~ppeal. The District Court passed a decree in ejectment and fwther appeals agains~ that decision \VCfe !rejected. In proceedings filed by the appellant 'for execution of the decree, 'NI contended that the court of Small Causes which had tried the suit 'had no jurisdiction to entertnin it as the suit premises were not governed by Bombay Act 57 of 1947. The cou·rt executing the decree rejected this contention. The order was confirmed by a Bench of the Court of ll Small Causes. The High Court of Gujarat in a petition filed by M under Article 227 of the Constitution, ordered that the petition for P-xecution be dismissed. On appeal t0 this Court, HELD : The appeal must be allowed and the order of the Court of Sn1all Causes restored. When a decree which is a nullity, for instance, \vlie-re it is passed without bringing the Jegal 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, objcc~ tion as to its validity may be raised in ac execution proceeding if the objection appears on the face of the record : where the objection as to F 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 Sma11 Cause~ G had jurisdiction to entertain the suit against M depended upon the inter- pretation of the terms of the agreement of lease and the user to which the land was put at the date of the grant of t1'e lease. These questions 1 could not be peirmitted to be raised in an execution proceeding so as to dis,,) 'ce the jurisdiction Of the Court which passed the drcree, [69 BJ Jnanendra Mohan' Bhaduri & Anr. v. Rabindra Nath Chakravarti, 60 I.A. 71; referred to. H CIVIL APPELLATE JURISDICTION : rivi! Appeal No, 406 of 1967. , VASUDEV RAJABHAI (~nun, J.) 67 A Appeal by special leave from the judgment and order dated August 22, 23, September 10, 1966 of the Gujarat High Court j,n Special Civil Application No. 371 of 1965. B D E F . G H 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 .Tamalpur Town Planning Scheme, Ahmedabad. Since 1948 Rajabhai Munshi was a te,nant 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 ~:mall Causes had no jurisdiction to entertain the suit and its decree was on that account a nuhity. 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
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