MEHRA MEHRA Vs. SANT KAUR GREWAL

JUDGEMENT

(1.) The respondent Dr. (Mrs.) Sant Kaur Grewal filed an eviction petition under section 14(1)(e) read with section 25B of the Delhi Rent Control Act, 1958 (herein the Act) against the appellant Mjs. Mehra-Mehra. The petition was allowed by the Controller Shri J. D. Kapoor on 31st March, 1980. A revision in the High Court was dismissed on 8th December, 1981. While the landlady moved an execution application on 10-12-1981, the ..petitioner preferred special leave petition to the Supreme Court. The Supreme Court dismissed the petition on 12-3-1982, but stayed execution up to 30-8-1982 provided the tenant filed an undertaking to vacate by the said date and to continue to pay the arrears of future compensation month by month. No such undertaking was filed. Instead, on 16-4-1982 the appellant filed an objection underorder 21 Rule 22 read with sections 47 and 151 Civil Procedure Code before Smt. Kanwal Inder who had by now succeeded Shri J. D. Kapoor as Controller. The objection was that the appointment of Shar Kapoor and Smt. Inder were bad in law and consequently, the order of recovery of possession made by Shri Kapoor was a nullity. Besides, the present Controller not being a successor court was not entitled to entertain the execution application. The learned Controller by her order of 18-1-1983 dismissed the objections. The Rent Control Tribunal by its order dated 4-2-1983 dismissed an appeal against her order. Hence, this second appeal.

(2.) I have heard the counsel, Shri Venu Gopal appearing for the respondent contended that the question raised by the appellant could not be raised at this stage because the executing court cannot go behind the decree. By virtue of section 42 of the Act. the order of eviction is executable as a decree of a civil court and for this purpose the Controller has all the powers of a civil court. Section 47 Civil Procedure Code provides that the executing court can determine questions relating only to the execution discharge or satisfaction of the decree. The appellant, therefore, cannot raise any question which does not relate to the execution or discharge or satisfaction of the order of eviction, while the question raised here is with regard to the validity of the decree which question should have been raised in the eviction proceedings and not in the execution proceedings. The learned counsel for the appellant on the other hand, argue that a question whether a decree is a nullity can beraised at any stage.

(3.) In Ledgard and another v. Bull, (1886) L.R. 13 I.A. 134(1), the Privy Council held that consent or waiver can not cure inherent lack of jurisdiction. Following Ledgard (supra) in Seth Hiralal Patni v. Sri Kali Nath, (1962) 2 SCR 747(2), it was observed that the validity of the decree could be challenged in execution proceedings on the ground that the court which had passed the decree was lacking in inherent jurisdiction in respect of the subject matter or over the partics to it. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. and can be waived. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others, AIR 1970 SC 1475(3), it was observed that an objection as to the validity of a decree may be raised in an execution proceeding if it appears on the face of the record, but where the question as to the jurisdiction of the court to pass the decree does not appear on the face of the record and where it is necessary to investigate facts in order to determine whether the court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceedings. Same was the view taken in Sunderdass v. Ram Parkash, AIR 1977 SC 1201(4). There are yet several decisions of the Supreme Court in which an eviction order based upon compromise was successfully challenged in execution as without jurisdiction because there was no indication to show that the conditions requisite for eviction were in fact satisfied. The last of such decisions is K. K. Chari v. R. K. Seshadri, (1973) 3 SCR 691(5). Section 21 of the CPC provides that an objection to territorial or pecuiiiarv jurisdiction will not be heard linless raised at the earliest opportunity and has resulted in failure of justice. Yet, it makes no such provision in regard to inherent lack of jurisdiction. No doubt, one is not bound to obey a nullity and there arc no degrees of nullity. But what the courts have laid down is that an order or decree cannot be challenged in execution proceedings unless the authority making the order or decree lacked the inherent jurisdiction. If this were not insisted upon, there will be no finality to litigation. That is why section 43 of the Act provided that every order made by the Controller or an order passed on appeal under the Act shall be final and shall not be called in question in any original suit, application or execution procecdings. South Asia Industries (P) Ltd. v. S. B. Sarup Singh and others, AIR 1965 SC 1442(6), explained that section 43 imposes a total bar. No restrictive meaning can be given to this section because the Act is a self-contained one and provides an exhaustive code. That should have put an end to the arguments of the tenant appellant. But an ouster clause does not bar judicial review, vide Khudi Ram Das v. State of West Bengal, AIR- 1975 SC 555(7} at 558, and In re-Spccial Courts Bill AIR 1979 SC 478 para 100(8). As held in R. J. Singh Ahiuwalia v. The State of Delhi, AIR 1971 SC 1552(9),a jurisdictional point goes to the root of the case and can be raised at any stage. It is contended that the Controllers lacked inherent jurisdiction because the Lt. Governor who appointed them had no authority to do so. It is further contended that it can be demonstrated by an examination of the relevant notifications and calls for no investigation into facts as much. I, therefore, reject the initial objection of Shri Venn Gopal.