- (1.) T. P. Garg, J. This writ petition under Article 226 of the Constitution of India is directed against the judgment dated 19-2-1986 (Annexure T to this petition) rendered by IIIrd Additional District Judge, Mathura, respondent No. 1, in Civil Revision No. 257 of 1983, Sri Suresh Chandra Jain v. Sardar Prtiam Singh Kalsi.
(2.) THE facts in brief shorn of details and necessary for the disposal of this case lie in a narrow compass. One Seth Bhagwan Dass, son of Seth Gopal was the owner and landlord of the premises in dispute. He had let out the aforesaid premises to the present petitioner through a registered lease deed dated 9-5- 1947, on monthly rent of Rs. 26. Seth Bhagwan Dass transferred the aforesaid premises to Sri Suresh Chandra Jain respondent No, 3, who consequently became the owner and landlord of the disputed premises bearing Municipal No 1176/4. He had brought a suit being S. C. C. Suit No. 75 of 1976 for ejectment and recovery of rent against Singh Sardar Pritam Kalsi In the aforesaid suit, on 9-2-1978, Sardar Pritam Singh Kalsi, had moved an application for adjournment, but the same was rejected although his counsel was present. THE Civil Judge, Mathura, exercising the powers of Judge, Small Causes Court decreed the aforesaid suit for ejectment and recovery of rent by taking recourse to Order XVII, Rule 3, of the Code of Civil Procedure. Aggrieved by the aforeasaid decree, the present petitioner moved an application under Order IX, Rule 13, C. P. C. for setting aside the aforesaid decree. THE Judge, Small Causes Court-cum-Civil Judge, Mathura, vide his order dated 26-5-1978 passed in Misc. Case No. 11 of 1978 (Annexure 2 to the petition) dismissed the aforesaid application with cost. THEreafter, the petitioner filed a revision being Civil Revision No. 39 of 1970 under Section 25 of the Small Causes Courts Act against the Order dated 26-5-1978 vide Judgment dated 14-9-1978 passed by IInd Additional District Judge, Mathura (Annexure 3 to the counter-affidavit), the revision was partly allowed the suit for ejectment was dismissed while the suit for recovery of Rs. 705. 25 P. as arrears of rent was decreed. THE respondent/landlord moved an application to review the judgment dated 14-9-1978 (Annexure 3 to the counter-affidavit ). THE review application was allowed by the IInd Additional District Judge vide his judgment dated 25-1-1979 (Annexure 4 to the counter-affidavit) and consequently the revision filed by the petitioner tenant was dismissed in toto with costs. THE tenant filed a second revision being Civil Revision No. 1019 of 1979 under Section 115, C. P. C. in the High Court which was dismissed as not maintainable. Simultaneously the tenant also filed writ petition being C. M. W. P. No. 10399 of 1988 under Article 226 of the Consti tution of India which was dismissed by this Court vide order dated 26-11- 1980 (Annexure 6 to the counter-affidavit.) THE landlord then made an applica tion for execution of the decree in the Court of Munsif, Mathura, objcetions under Sec. 47, C. P. C. were filed by the tenant and others contending, inter, alia, that the decree was a nullity and as such inexecutable. In the course of execution proceedings, the court permitted the tenant and others to lead evidence in support of their contentions raised in the objection petition under Section 47, C. P. C. THE landlord, thereafter, moved an application that it was beyond the competence of the court to have permitted Pritam Singh Kalsi and others to adduce evidence presumably on the ground that the executing court could not go behind the decree. This plea did not find favour with the executing court. THEreafter, the landlord moved an application before the lower court for review of the order. THE Munsif, Mathura, vide his order dated 15-9-1983 (Annexure 3 to the petition) however, dismissed the review application. THE landlord thereafter filed a revision petition in the Court of IIIrd Additional District Judge, respondent No. 1, who vide his judgment dated 19-2-1986, passed in Civil Revision No. 257 of 1983 (Annexure 1 to the petition), allowed the same and get aside the order dated 15-9-1983 (Annexure 3 to the petition ). It was, inter alia, held that it was not open for the court below to decide whether or not decree was without jurisdiction and that it was beyond the competence of the lower court to have permitted the tenant opposite party and others to lead evidence. Aggrieved by this judgment, Pritam Singh Kalsi, tenant, has filed the present petition. During the pendency of the petition Pritam Singh Kalsi died on 26-11-1991 and an application for bringing his legal heirs on record was moved on 18-2-1992. The counsel for respondent No. 3 having no objection, the delay in filing the same is condoned and the application is allowed. Let the legal representatives of Pritam Singh Kalsi, namely, Smt. Harbhajan Kaur, Rakshpal Singh Kalsi and Hardeo Singh Kalsi be brought on record and their names be shown in the title of the petition. It was at the outset argued on behalf of the petitioner-tenant that the decree sought to be executed was a nullity because the court passing the decree lacked inherent jurisdiction. Reliance has been placed on two authorities cited as Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 and Babu Nandan v. Mst. Sumitra, AIR 1961 All 287.
(3.) IN Kiran Singh's authority (supra), it was laid down by the Supreme Court that it is the fundamental principle that a decree passed by Court without jurisdiction is a nullity and that its validity can be challenged whenever and wherever it is sought to be enforced or relied on even at the stage of execution and even in collatural proceedings. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action strikes at the very authority of the court to pass any decree and such a defect cannot be cured even by consent of parties. Relying upon Kiran Singh's authority (supra), Hon'ble S. N. Sahai, J, of this Court in Babu Nandan's authority (supra), observed that judgment-debtor can raise objection during execution that decree cannot be executed, having been passed by court having no jurisdiction, even though he had not raised it during suit. There can be no dispute with the aforesaid proposition and the principle laid down in the two authorities relied upon by the counsel for the petitioner. But then it appears to me that it is not the case here in the instant matter. In the instant case, the Civil Judge, Mathura, exercising the powers of Judge Small Cause Court certainly had jurisdiction to try and entertain the suit and pass the decree in question as will be evident from the discussions in the following paras.;