B.K.BEHERA, J. - (1.) THESE two revisions between the same parties involving common questions of facis and law have been heard together and will be governed by this common order. As petitioner in both the revisions assails the orders passed by the ieained Subordinate Judge, Berhampur, rejecting the contentions raised on its behalf that the two decrees passed in favour of the opposite party by making the awards passed by the Arbitrator rules of the Court are not legally executable having been passed without jurisdiction.
(2.) BEING the owner of the godowns located in the city of Berhampur in the district of Canjam, the opposite party gave the godowns on rental basis to the petitioner on stipulated rnonthly rent by two separate agreements containing an arbitration clause to be operative in the event of any dispute between the parties. The petitioner entered into possession of the premises in 1973. Notice was given by the opposite party to the petitioner raising certain disputes and for reference thereof to arbitration. When the tenant failed to make the reference, the learned Subordinate judge was moved Under Section 8 of the Arbitration Act (for short, 'the Act') for appointment of an arbitrator and for reference of the dispute for adjudication by him. As there had been two separate agreements, two applications were made which were registered as M. J. C Nos. 364 and 365 of 1979. The learned Subordinate judge appointed Mr. Justice R.K. Patro, who had retired as the acting Chief justice of this High Court, as the Arbitrator. The appointments in the two cases were challenged by the petitioner in this Court in Civil Revision Nos. 41 and 42 of 1981. This Court sustained the appointments. The Arbitrator entered upon the references. The opp. party fifed its claims and the petitioner filed its objections thereto The opposite party put in a claim of Rs. 56,40,285 -70 paise and Rs. 69,13,908 -10 paise in the two cases The Arbitrator gave consolidated unreasoned awards for Rs. 7,90,635 -00 in one case and Rs 9,08,736 -00 in the other, allowing future interest at the rate of twelve per cent per annum. Objections on several grounds were taken by the petitioner after the awards were filed in the Court In Title Suit Nos. 32 and 33 of 1982, the learned Subordinate Judge overruled the objections and made the award rules of the Court, The decisions of the learned Subordinate Judge in the two suits were challenged in Miscellaneous Appeal Nos. 491 and 492 of 1982 in this Court. The appeals were dismissed. In the two appeals, the question relating to absence of jurisdiction of the arbitrator was raised, considered and negatived and it was held that the awards and the decrees passed on their basis were not without jurisdiction. Special Leave Petitions filed by the petitioner against the appellate judgment of this Court in respect of the two awards were dismissed by the Supreme Court on November 1, 1983. When applications were made for execution of the two decrees in E. P. Nos, 50 and 51 of 198} in the Court of the learned Subardinate Judge, Berhampur, objections were raised by the petitioner challenging the executability of the decrees Under Section 47 of the Code of Civil Procedure for short, 'the Code'). After hearing the parties, the learned Subordinate Judge overruled the objections by his orders dated April 20, 1984 passed in M. J. C. Nos. 36 and 37 of 1984 arising out of E. P. Nos. 50 and 51 of 1983. These orders are now assailed in the two revisions.
(3.) APPEARING on behalf of the petitioner in both the revisions, Mr. R. Mohanty has contended, referring to the principles laid down in AIR 1954 S C. 340 : Kiran Singh and Ors. v. Chaman Paswan and others, AIR 1962 S. C. 199 : Hira Lal Patni v. Sri Kali Nath, AIR 1929 Lahore 449 : Parshottam Das Nathu Ram and Ors. v. Radha Kishan and Anr. and 1974(1) CWR 72 Sm. Sobhabati Devi v. Voona Bhimayya Subudhi and others, that the executing Court can go behind the decree when it is a nullity having been passed without inherent jurisdiction and such an objection may be raised even in an execution proceeding. It has been submitted on behalf of the petitioner that when a decree is passed by a Court having inherent lack of jurisdiction, it does not operate as res judicata - In this Connection, reference has been made to and reliance has been placed on the cases reported in (1969) 2 SCR 432, Bahadur Singh and Anr. v. Muni Subrat Dass and another, AIR 1971 S. C. 2355 Mathura Prasad Sarjoo Jaiswal and Ors. v. Dossaiai N. B. Jeejeebhoy, AIR 1984 Ori. 49 Krushna Chandra Sahoo v. Sndramani Sahu and others, AIR 1933 All. 751(2) Sarabjit Pratap Bahadur Sahi v. Inderjit Pratap Bahadur Sahi and AIR 1958 Bom. 30, Bai Shakri v. Bapusinghji Takhatsinghji. In AIR 1971 S. C. 2355 (supra) the Supreme Court has held that if a Court assumes jurisdiction which it does not possess under the statute, is decision cannot operate as res judicata between the same parties Mr. Mohanty has urged that as the tenancy still subsisted when the Arbitrator entered upon the reference on January 17, 1981 and applied his judicial mind on March 15, 1981, when he passed orders for production of documents and the premises were vacated on May 21, 1981 ,the arbitrator had no jurisdiction to entertain the claims for determination of escalated rent which could be done only by the Controller under the Orissa House Rent Control' Act, 1967, as provided in Secs 4 and 5 therein and as a necessary corollary, the awards were void as being against public policy and could not be made rules of the Court and the basis of the two decrees sought to be executed. Reference has been made by Mr. Mohanty to AIR 1981 S. C. 537 : Natraj Studios (P) Ltd. v. Navrang Studios and another. Mr. Mohanty has contended that the validity of the decrees can be gone into by the executing Court if there i5 lack of inherent jurisdiction and it is not correct to say that the same have acquired finality under the Act and can only be challenged Under Section 33 and 39 of the Act. In this connection, my attention has been invited to the principles laid down in AIR 1970 S.C. 1475 Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rahman and others. It has been submitted on behalf of the petitioner that the tenant -petitioner had never specifically agreed to waive its rights and consequently, waiver, if any, could not confer jurisdiction on the Arbitrator or on the Court passing the decrees.;