- (1.) THIS is a second appeal by the judgment-debtor Heera in execution proceedings.
(2.) THE facts leading to it are that the respondents No. 1 Udairam and his four sons, respondents No. 2 to 5, filed a suit for preemption in respect of a house, against the appellant and the remaining respondents. THE suit was decreed by the Civil Judge on 31st July, 1950. On 21st January, 1952, the decree-holders presented an application for execution THE appellants resisted it saying that he was residing in the house from 16th June, 1942, as a tenant of Sukha and others,that he had paid the rent up to Basakh Sudi 2, Svt. 2009, that he was protected by sec 13 of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, and that he should not be ejected from the property. THE executing court dismissed this objection. On appeal the learned District Judge also repelled this contention on the ground that the appellant himself was one of the judgment debtors and he could not set up the plea of tenancy. He has, therefore, filed this second appeal. The appellant's learned Advocate has raised an entirely new ground in this Court. His contention is that the preemption suit in the present case was based on the ground of vicinage alone under sec. 3 (iii) of the Marwar Pre-emption Act, that the Constitution of India came into force on 16th January, 1955, and the said clause of the Marwar Pre-emption Act therefore became void and invalid being against Art. 19 (1) (f) of the Constitution of India, that this view of law has been taken by this Court in other cases, that the decree in the present case was passed on 31st July, 1955, when the law on which it was based had already become invalid, and therefore the decree having become inexecutable, the respondents' application for execution should be dismissed. In support of his contention, he has referred to the case of Panch Gujar Gaur Brahmans vs. Amar Singh (1) decided by the Full Bench of this Court on 20th October, 1953. In that case it was held that the custom of pre-emption which allowed the owner of the adjoining property claim possession of the property sold only on the ground of being the owner of the adjoining property is invalid as being contrary to the provisions of Art. 19 (1) (f) of the Constitution of India. He has next referred to the case of Shunker Lal vs. Poonam Chand (2) decided by a Division Bench of this Court on 11th November 1953. In that case it was observed that the law is well settled that the pre-emptor must have a subsisting right of pre emption on all the three following dates, namely, the date of sale, the date of institution of the suit, and the date of the decree. It was also held that the law of pre-emption based on vicinage having become invalid from the 26th of January, 1950, no decree could be passed for pre-emption from that date as no pre-emptor would have a subsisting right from that date. The respondents' learned advocate has not contested the fact that the pre-emption suit in this case was founded on the ground of badinage only, but he has urged in reply that the executing court cannot go behind the decree and, therefore, this matter cannot be agitated in execution proceedings. The question for determination before this Court is whether a decree for pre-emption based on the ground of vicinage of property and passed on or after the 26th of January, 1950, is executable. According to the appellant's learned advocate, the courts had no inherent jurisdiction left after the 26th January, 1950, to pass such a decree and, therefore, it being a nullity, the executing court can go into the question and refuse to execute it. On the other hand, the respondents' learned advocate urges that this matter could be agitated on the original side, but once the decree is passed and becomes final the matter cannot be re-opened in execution proceedings and the executing court must execute that decree whether it be right or wrong. Learned advocates for both the parties have referred to a number of rulings in support of their contentions. I have given long consideration to the matter and I think that this matter can be raised in execution proceedings and in view of the decisions of this Court referred above, the present decree is a nullity and cannot be executed. In the case of Rabindra Nath Chakra-varthi vs. Jnanendra Mohan Bhaduri (3) an award was filed under the Arbitration Act in the High Court of Calcutta on its original side and a decree was passed thereupon. During execution proceeding, an objection was taken to the validity of the decree as being passed without jurisdiction and hence the execution was dismissed. In appeal, it was agitated before a Division Bench of that Court that the executing court was not competent to go behind the decree and question its validity. It was held that no decree or judgment could be pass:d on an award filed under the Arbitration Act, but the award could be filed and the execution taken on it as if it were a decree. Following the Full Bench decision of that court in the case of Gorachand Haldar vs. Profulla Kumar Ray (4), it was also observed that the decree under execution was not the result of a mere irregular or illegal exercise of the Court's jurisdiction in the shape of the adoption of a wrong procedure, but was one made in excess of the inherent jurisdiction of the Court and therefore the executing court was competent to treat the decree as a nullity. The matter went in appeal to their lordships of the Privy Council (5 ). Their Lordships agreed with the view of the learned Judges of the Calcutta High Court and held that the decree was passed without jurisdiction and was therefore, incapable of execution. In view of the said pronouncement of their Lordships of the Privy Council, there is in my mind no room for any doubt that the executing court can go behind the decree and refuse to execute it if it finds that it is a nullity on account of its being passed by a court which had no inherent jurisdiction to pass. The respondent's learned advocate has contended that the court which passed the decree in the present case did not suffer from the defect of any inherent lack of jurisdiction, but I do not agree with this contention. A right of pre-emption is not a natural right but it is a creature either of some custom or some law. According to the decisions in Panch Gujar Gaur vs. Amar Singh (l) and Shanker Lal vs. Poonamchand (2) referred above, the custom or law of pre-emption which allowed an owner of adjoining property to claim possession of the property sold only on the ground of being the owner of the adjoining property became invalid on the 26th of January, 1950 as soon as the Constitution of India came into force. So it is apparent that on the date the present decree was passed, there was no valid law or custom according to which any court in Rajasthan could pass a decree for preemption on the mere ground of the vicinage of the pre-emptor's property to the property for which the suit was brought. No court had, therefore, any authority or jurisdiction left to pass a decree for pre-emption in such a case. To my mind, it was not a case of a mere irregular or illegal exercise of jurisdiction but was a clear case of total want of jurisdiction and therefore this Court can go into the matter even in execution proceedings. It only remains now to refer to the latest cases of different High Courts cited by the respondent's learned advocate. He has referred to the case of Kollepara Venkata Reddayya vs. Muthangi Kondala Rao (6 ). In that case it was observed that the executing court is not entitled to go behind the decree which stands amended rightly or wrongly. It may be pointed out that this case does not help the respondents because there was no question of inherent lack of jurisdiction involved therein. The next case referred by him is Trivedi Mulshanker vs. Narshidas Popatbhai (7 ). In that case, the validity of the decree was challenged on the ground that it was given without waiting for 30 days for filing objections to the award. It is obvious that the question involved was not one of inherent lack of jurisdiction but one about the procedure and for that reason it was held that the executing court could not go behind the decree. The following observation appearing in the judgment rather support the appellant's case - "it is Only in case of inherent incompetency of the Court to pass a decree that an executing Court is justified in refusing to execute a decree, e. g. decree against a person who is dead is a nullity, as the Civil Procedure Code does not contemplate a decree being passed against a dead person; a Small Cause Court has no inherent jurisdiction to pass a mortgage decree and if such a decree is passed by a Small Cause Court, it would be a nullity. " In the present case, there was no valid law before the Court at the time when it passed a decree and therefore it had no jurisdiction to substitute the pre-emptor in place of the vendee. The respondents learned advocate has next referred to the case of Pirji Safdar Ali vs. The Ideal Bank Ltd. (8 ). In that case it was observed as follow: - "it is a well established rule of law that the execution court is bound to execute the decree and cannot go behind it. The only exception to this rule is that when the decree is passed by a Court which had no jurisdiction to pass it, then by reason of the inherent defect of jurisdiction in the court passing the decree the to executing court cannot, however, refuse execute the decree because it is against law or contravenes any provisions of a statute. " It may be remarked that this case also does not help the respondents. On the other hand, it helps the appellant inasmuch as it lays down that if a decree is passed by a court which has no jurisdiction to pass it, then by reason of the inherent lack of jurisdiction in the court passing the decree the exacting court can ignore it. The respondents' learned advocate means to argue that inherent lack of jurisdiction should be at the inception i. e. , at the very time the suit is instituted. According to him, the court which passed the decree might have committed an illegality or irregularity but there was no lack of jurisdiction in that court. It may be pointed out that in every case it is not necessary that the want of jurisdiction should be present only at the time of the institution of the suit. If during the pendency of the suit, the jurisdiction of the courts ousted, even the then the court will suffer from lack of jurisdiction from the date its jurisdiction comes to an end. The ratio decidendi of the judgments of this Court in Panch Gujar Gaur vs. Amarsingh (2) and Shankerlal vs. Poonamchand (2) is that from the 26th of January, 1950, the custom or law of pre-emption on the ground of mere vicinage came to an end and therefore there was no jurisdiction left in any court in Rajas-than to pass a decree for pre-emption on that ground. This is,therefore, a ease of inherent lack of jurisdiction of the strongest type to my mind and the present decree cannot therefore be executed. The appeal is allowed and the execution application is dismissed. Since this point was not raised in the courts below, the appellant is left to bear his own costs in all the courts.
(3.) THE respondents' learned counsel has asked for permission to appeal under Rule 134 of Rajasthan High Court Rules. In view of the fact that an important point of law is involved, the permission asked for is granted. .;