- (1.) JAGAT NARAYAN, J. This is a judgment-debtor's execution appeal against an appellate order of the Senior Civil Judge, Kishingarh (Camp Ajmer), confirming an order of the Munsif, Ajmer City directing delivery of possession to the decree-holder in execution of a decree for ejectment passed against him on 6th January, 1955 during the continuance of the Delhi and Ajmer Rent Control Act, 1952, in respect of a portion of the house situated within the municipal limits of Ajmer.
(2.) THE judgment-debtor was admittedly a tenant of the decree-holder. It was alleged in the plaint that a sum of Rs. 1,080/- was due to the decree-holder from the judgment-debtor as arrears of rent for a period of 3 years from 20. 10. 1950 to 19. 10. 1954 at Rs. 30/- per month and that a notice was served on the judgment-debtor on 21. 2. 1951 demanding arrears of rent and determining his tenancy. THE judgment-debtor did not contest the suit. He did not file any written statement. He entered into a compromise with the plaintiff which was recorded by the Court, and a decree for ejectment on the basis of the compromise was passed in the following terms: - "ejectment decree is passed against the defendant of the suit premises. This decree will be executable on 15th March, 1960. That the money claimed had been remitted and the defendant will not pay on account of rent any thing upto 14th March, 1960. " Before the time for the execution of the decree for ejectment arrived, Ajmer became a part of the State of Rajasthan with effect from 1st November, 1956 and the Delhi and Ajmer Rent Control Act was repealed and the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 was extended to Ajmer under the amending and extending Act No. 34 of 1957. The judgment-debtor did not deliver possession to the decree-holder on 15th March, 1960 in accordance with the terms of the compromise. The latter therefore applied for the execution of the decree. The judgment-debtor resisted the execution on the strength of the provisions contained in secs. 13 and 26 of the Rajasthan Act on the ground that it was not based on one of the grounds mentioned in sec. 13. Both the courts below held that it is based on the ground mentioned in sec. 13 (1) (a) of the Rajasthan Act and rightly so in my opinion. In the plaint of the suit for ejectment, it was alleged that judgment-debtor had not paid rent for three years. This position was not controverted in the suit by him. On the contrary, this was impliedly admitted in the compromise which was recorded inasmuch as it was specifically mentioned that the money claimed has been remitted. Under sec. 13 (1) (a) read with sec. 13 (4) and its proviso, as these provisions stood on the date when the execution of the decree was sought, a tenant is liable to ejectment if he has made a default in payment of rent on three occasions within the period of 18 months preceding the institution of the suit. In the present suit, both on the principle of constructive res judicata as well as on the basis of the implied admission contained in the compromise the judgment-debtor had made 18 defaults in the payment of rent within a period of 18 months. Learned counsel for the judgment-debtor did not challenge the findings of the courts below on this point before me. Nor did he press any of the other grounds taken in the memorandum of appeal. He contended that the executing court should decline to execute the decree on the following two grounds - (1), The decree is contrary to law inasmuch as sec. 13 (1) (a) of the Delhi & Ajmer Rent Control Act, 1952, which was in force at the time when it was passed, provided that the tenant could not be ejected unless the Court was satisfied that the tenant had not tendered the whole of arrears of rent within one month from the date of service of a notice of demand on him. In the present suit, as has been mentioned above, it was not alleged in the plaint that only notice of demand had been served on the judgment-debtor demanding the payment of Rs. 1,010/ -. What was mentioned was that a notice of demand was served on 21. 2. 61 for payment of the arrears of rent. It was, however, not mentioned whether any arrears were due on the date ; (2) The consent decree being contrary to law on the above ground, its enforcement will defeat the provisions of the Delhi and Ajmer Rent Control Act, 1952, referred to above, and the enforcing of the decree is therefore opposed to public policy. Learned [counsel referred to some authorities to support the above contentions. These cases are either distinguishable on facts or are not applicable or in my humble opinion do not lay down sound law. Before dealing with these cases, I may state that the executing court cannot go behind a decree unless it is a nullity. A decree is a nullity if the court passing it lacks inherent jurisdiction. It cannot be regarded as a nullity if in passing it there is an illegal exercise of jurisdiction or material irregularity in the exercise of jurisdiction. Compromise and consent decree also cannot be challenged by the executing court. Such decrees are, however, subject to the exercise of powers of the executing court as a Court of Equity to relieve against forfeiture and penalties. The most important decision referred to on behalf of the appellant is the decision of a Full Bench of the Madras High Court in Mohanram and others Vs. T. L. Sundarerr-mier (1 ). In that case a decree for sale of service inam lands the alienation of which was prohibited by statute was passed without any objection on the part of the mortgagor with regard to the inalienability of the land. An objection was raised by him before the executing court for the first time. It was held as follow : - "under certain exceptional circumstances at least, an executing Court can go behind the decree, and refuse to execute a decree which is both opposed to public policy and to enact law. This power of the court is not the right of a party, or the power of a party at all; though a party can invoke the exercise of this power by bringing facts to the notice of the Court, the power arises really because the conscience of the Court is stirred. Either it is undisputed by the parties, or it is indisputably established and made evident from material which is upon the same footing as the decree sought to be executed that the decree contravenes both public policy and the enacted law. If within such limits such a situation arises the executing Court can go behind the decree and decline to execute it. " (Para 52) The above case is distinguishable from the present case. There the sale of service inam lands was prohibited by statute. Here the ejectment of a tenant for arrears of rent is in itself not prohibited by law. It is laid down in the Delhi & Ajmer Rent Control Act, 1952 that a decree for ejectment shall not be passed unless the tenant has failed to pay the arrears within a month of the service of the notice of demand on him. The public policy underlying this law is that a tenant who is ready and willing to pay the arrears due should not be ejected. The manner of ascertaining the willingness of the tenant to pay the arrears laid down under the law is that a notice of demand shall be served upon him and he shall be given a month's time to pay off the arrears before a suit is instituted. Sec. 13 (2) of the Ajmer Act provided another opportunity to the tenant to pay the arrears of rent on the first day of hearing. It cannot be said that the law prohibits a tenant from voluntarily surrendering his tenancy. The contract embodied in the compromise decree under which the judgment-debtor agreed to surrender his tenancy and deliver possession to the decree-holder on 15. 3. 60 for valuable consideration cannot therefore be said to be in any way opposed either to the letter of law contained in the Delhi and Ajmer Rent Control Act, 1952 or the public policy underlying it. Further the tenant having voluntarily agreed to surrender the tenancy in lieu of the landlord agreeing to forego rent for three years prior to the institution of the suit and for five and a half years subsequent to it, the conscience of the Court will be stirred if the tenant is allowed to back out of it now when the recovery of most of this rent has become time-barred and not enforcing the compromise decree. The decision in Mohanram's case is, therefore, not applicable to the facts of the present case and the executing Court cannot go behind the consent decree in the circumstances of this case. I may mention here that a question similar to that which arose before the Full Bench of the Madras High Court came up for decision before the Full Bench of the Andhra High Court also in A. Venkataseshayya Vs. A. Virayya (2) in which a view different from that taken by the Madras High Court was taken. I am in respectful agreement with the view taken in Venkataseshayya's case. Subba Rao, C. J. , as he then was, delivering the judgment of the Court observed - ' "an alienation of properties prohibited by public policy or statute may be void. But the said prohibition cannot have the effect of depriving the jurisdiction of Courts to decide in a particular suit whether the alienation is void or not. Nor can it override the principles of res judicata. The former belongs to the domain of substantive law and the latter to the rule giving finality to decrees of competent Courts. The sanctity of final judgments is as much based on public policy as prohibition against the aliena tion of properties annexed to certain public offices. " In K. Muhammed Sukri Sahib Vs. Thelapurath Madhava Kurup (3), possesion was delivered to the decree-holder by the executing Court as it was unaware of the amendment of clause 8, Non-Residential Building Rent Control Order, 1942, under which only the Rent Controller was authorised to evict a tenant. It was held that the executing Court could set aside its erroneous order under sec. 151, Civil Procedure Code. This decision is not applicable to the facts of the present case. In Ram Jiwan Vs. Devendra Nath Gupta (4), it was held by a learned single Judge that "where a consent decree contains terms that do not relate to the suit, such terms cannot be enforced in execution of the decree but they may be enforced as a contract by a separate suit. " This decision is also of no help in the present case. I may mention here that a contrary view was taken in Govinda Nattar Vs. Murugesa Mudaliar (5 ). In Basant Singh Vs. Tirlokinath Lachhman Dass (6), it was held that a decree passed by a Court having no pecuniary jurisdiction even according to the valuation given in the plaint is a nullity and the executing Court can refuse to execute it. This decision also is not applicable to the facts of the present case. I may mention here that this decision runs counter to the principles laid down in the Full Bench case of the Andhra Pradesh High Court referred to above. It was open to the defendant to have challenged the pecuniary jurisdiction of the Court and as he did not do so, it would be deemed that the objection was taken and was overruled. It makes no difference whether the objection is taken and wrongly decided or whether it is not taken at all. In this connection I may refer to the decision of our Court in Ratanlal Vs. Dholpur Glass Works Ltd. , Dholpur (7), in which it was held that it was not open to a judgment-del tor to raise an objection against the execution of an exparte decree against him that the Court passing it had no territorial jurisdiction as neither the cause of action arose within its jurisdiction nor the defendant resided there. It would also be pertinent to quote the observations made by their lordships of the Supreme Court in Kiransingh Vs. Chaman Paswan (3) - "the policy underlying sec. 21 and sec. 99 Civil P. C. and Sec. 1 1 of the Suits Valuation Act, is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice. " and in Sailendra Narayan Bhanja Deo Vs. The State of Orissa (9) - "a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case. " Reading the two observations together, it appears to me that a decree cannot be challenged in the executing court on the ground of lack of pecuniary or territorial jurisdiction in the court passing it. It makes no difference whether the want of territorial or pecuniary jurisdiction is latent or patent. Their lordships held in Mohanlal Goenka Vs. Benoy Kishna Mukherjee (10) that even an erroneous decision on a point of law operates as res judicata. Such a defect is generally patent on the face of the judgment. In Shyam Sundar Padhi Vs. Indramoni Das (11), it was held that an executing Court has got the power to apply the equitable principle embodied in sec. 74, Contract Act, and relieve one of the parties to the contract against any term which operates as a penalty although the contract may have been embodied in a decree of the Court. This principle is well established and is not disputed. But it is not applicable to the facts of the present case. In Rai Kumar Singh Vs. Abhai Kumar Singh (12), the parties arrived at a compromise in a partition suit on the basis of which a decree was passed. Subsequently one of the parties contended that the compromise violated sec. 6 (a) of the Transfer of Property Act and was therefore not enforceable in a Court of law. It was held that the party was entitled to show, without bringing a suit to set aside the compromise decree, that the impugned agreement though embodied in a compromise decree could not be enforced in a Court of law provided that the, infirmity of the compromise did not depend on proof of any extraneous facts but was patent on the face of it. On the facts it was held that the compromise was not hit by any rule of Hindu law or by the provisions of sec. 6 (a) of the Transfer of Property Act. The observations relied on were therefore obiter. I am unable to subscribe to the view expressed in this case. It runs counter to the reasoning given by the learned Chief Justice in the Full Bench case of the Andhra High Court. An order recording a compromise is appealable and if the compromise is not lawful within the meaning of O. 23, R. 3, C. P. C, the aggrieved party should file an appeal to challenge the validity of the compromise. It cannot be permitted to challenge it in the executing Court.
(3.) IN Waman Shriniwas Kini Vs. Ratilal Bhagwandas and Co. (13), it was held that a statutory prohibition against sub-letting could not be waived by the landlord and a contract entered into by the landlord with his tenant prohibiting the sub-letting was void. As has been pointed out above, the contract embodied in the compromise decree did not contravene the provisions of the Delhi and Ajmer Rent Control Act, 1952. This decision also is therefore inapplicable to the facts of the present case. I accordingly find that there is no force in the contentions raised on behalf of the appellant. I, therefore, dismiss the appeal. In the circumstances of the case, I direct that parties shall bear their own costs of this Court. .;