M. C. JAIN, J. - (1.) THIS revision is directed against the order dated 2. 2. 88 passed by Munsif Bikaner whereby the petitioner's objection that decree is nullity on the ground that the suit for eviction did not lie u/sec. 14 (3) of the Rajasthan premises Control (Rent & Eviction) Act, 1950 was dismissed.
(2.) THESE facts are not in dispute that the decree-holder filed a suit for eviction of shop on 1-12-81. That suit was decreed by the trial court and the decree was maintained up to the High Court in second appeal and the plaintiff decree holder submitted an execution application No. 47/84 for issuance of warrant of possession. In execution of the decree, the judgment debtor petitioner submitted an objection that under sub sec. 3 of Sec. 14 there is a provision beginning with the non abstante clause to the effect that no suit for eviction from the premises let out for commercial or business purposes shall lie against a tenant on the ground set forth in clause (h) of sub-sec. (1) of sec. 13 before the expiry of five years from the date the premises were let out to the tenant. According to the judgment debtor the premises were let out to him on 22. 12. 76 as alleged in the plaint and five years had not expired so that suit for eviction was not maintainable and did not lie u/sec. 14 (3 ). The trial court considered the objection and stated that the decree had become final. No such objection as earlier raised and decree has not become nullity so this objection is not open to be raised in the execution by the judgment debtor. As the decree is not nullity, execution court cannot go behind the decree. Dissatisfied with the order of the learned Munsif, this revision petition has been filed. I have heard Shri K. C. Samdariya learned counsel for judgment debtor and Shri H. D. Khatri, learned counsel for decree holder respondent. The only question involved in this revision petition is as to whether the decree which has been passed in the suit for eviction is a nullity. It may be stated that the court had the Jurisdiction to try suit which has not been denied by the learned counsel for the petitioner, when the court had jurisdiction to try the suit, then all issues arised in the suit which ought to have made the ground of attack and defence, would be deemed to have been decided. Admittedly this objection was not raised by the judgment debtor petitioner that the suit did not lie, in view of the provision contained in Sec. 14 (3) Such a plea ought to have been raised by the petitioner in the earlier suit, Having not raised such a plea, it is not open to the petitioner to raise this plea in execution of the decree as it would be barred by the principle of constructive resjudicata. Mr. Samdariya referred to a decision of Supreme Court in Vasudev Dhanjibhai Modi V. Rajabhai Abdul Rehman (1 ). It has been observed in this case as under: - "when the decree is made by a Court which has no inherent jurisdiction to make it, objection as its validity may be raised in an execution proceeding if the objection appears on the face of the record. But where the objection as to jurisdiction of the court to pass the decree does not appear on the face of the record and required examination of the question 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". "where a decree for ejectment of a lessee is passed by a Court of Small Cause without any objection to its jurisdiction and the question of jurisdiction of that Court to entertain the suit depends upon interpretation of the terms of agreement of lease and the user to which the land was put at the date of grant of lease these question cannot be permitted to be raised in an execution proceeding so as to displace the jurisdiction of the Court which passed it". It can be said that the aforesaid observations of the aforesaid decision do not in any way help the petitioner. If such an objection would have been raised during the trial of the suit, this question would have been determined as to whether 5 years have expired from the date of letting out the premises to the tenant. It is true that in the plaint the plaintiff has alleged that part of the premises were let out on 22. 12. 76. It has been pointed out by Shri H. D. Khatri, learned counsel for the decree holder that if such an objection would have been raised, the original rent note would have been filed. In the original rent note, the tenancy has commenced w. e. f. 1. 12. 76 and the suit had been filed after the expiry of 5 years on 1. 12. 81. Five years expired on 30th November 1981. The question raised in the execution requires investigation of facts and as such, such an objection cannot be allowed to be raised by the judgment debtor at the stage of execution for the first time as the same was open to be raised during the trial of the suit.
(3.) FURTHER reliance has been placed by Shri Samdariya on a decision of the Supreme Court in Haji SK. Subhan V. Madhorao (2), This authority has no application to the present case. In that case after hearing all the arguments and before delivery of judgment by the High Court, the Madhya Pradesh Abolition of Proprietary (Estates, Mahals, Alienated Lands) Act, 1950 came into force whereby all proprietary rights vested in the State. It was held that an ignorance of the above legislation the decree was passed so that decree became in excuable as proprietary right vested in the state and as aconsequence of which the proprietor's right under the decree to obtain possession, also vested in the State, even though the state got right to the possession of the land under other provisions of the act as well. Thus this authority has no application to the present case. Similarly the other decision referred to by Shri Samdariya in Sunder Dass. V. R am Prakash (3) has no application. In that case, the decree became nullity for lack of inherent jurisdiction,. Proviso to Sec. 3 was added with retrospective effect and it would be deemed that the proviso was in force since the time Delhi Rent Control Act 1958 was enacted. It was held that by virtue of such proviso the provisions of Delhi Rent Control Act were applicable to the tenancy. So it was held that the Civil Court had no inherent jurisdiction to entertain the suit. Mr. H. D. Khatri, learned counsel for the decree-holder respondent cited a decision of the Supreme Court in Ittyavira Mathai V. Varkey Varkey (4) It was observed in that case that where a court having jurisdiction over the subject matter and the party passes a decree it cannot be treated as a nullity and ignored in subsequent litigation even if the suit is barred by time. It was further observed as under: - "it is true that S. 3 of the Limitation Act is pre emptory and that it is the duty of the court to take motive of this provision and given effect to it even though the point of limitation is not referred to in the pleadings. Even so it cannot be said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the civil Procedure Code. If the duty agrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity". ;