MUNNI DEVI Vs. RADHA DEVI

JUDGEMENT

(1.) THIS is a revision under Section 115 of the Code of Civil Procedure, 1908, (for short the Code), preferred by the judgment debtor, the defendant applicant in a suit filed by the plaintiff opposite party for ejectment of the defendant from the premises situate in Mohalla Katinganj, Azamgarh and for recovery of a sum of Rs. 2700/ - as arrears of rent for the period October, 1982 to June 1983. It was alleged in the plaint that the defendant was let out the said premises on a monthly rent of Rs. 300/ - and he failed to pay the rent since October, 1982 despite service of notice of demand and termination of tenancy, and that the defendant was occupying one more room in an illegal manner after the service of notice upon him.

(2.) THE defendant contested the suit denying the plaint allegations. It was alleged that the defendant was occupying two small rooms, one verandah, one court yard and one latrine in the said premises as a tenant on a monthly rent of Rs. 30/ -, and that the rent till April 1983 has been paid to the plaintiff and remaining rent since May 1983 has been deposited in the court of Munsif in Misc. Case No. 51 of 1983. An issue was framed on the point as to what was the accommodation in the tenancy of the defendant and that was with a view to record a finding as to whether the defendant has occupied one additional room after the service of notice. The finding of the Judge Small Cause Courts was that the defendant has been let out the entire ground floor accommodation of the said premises and the case of the plaintiff to the contrary that the defendant illegally occupied one more room on the ground floor after the service of notice was false. The suit was dismissed by the judgment dated 22 -5 -1985. Against that judgment a revision was filed being Civil Revision No. 419 of 1985 by Smt. Radha Devi, the plaintiff against Smt. Munni Devi, the defendant Another revision was filed (being Civil Revision No. 473 of 1985) by the tenant Smt. Munni Devi against Smt. Radha Devi, the plaintiff. The revision came up for hearing before this Court and Hon'ble K.C. Agarwal, J. (as his Lordship then was), allowed Revision No 419 of 1985 filed by the plaintiff, the landlord and decreed the suit, whereas the revision filed by the tenant was rejected. The judgment of this Court became final and no special Leave petition appears to have been filed before the Supreme Court. It is the judgment of this Court that was sought to be executed before the execution court, where the present defendant applicant raised a number of objections pertaining to the validity of the notice under Section 106 of the Transfer of Property Act, and also that the decree was inexecutable and that the court has no jurisdiction to pass the decree. As the case of the plaintiff, the landlord was that one more room was occupied by the tenant after service of notice to quit, hence in respect of that a decree must have been passed for ejectment and the plaintiff must have filed a suit on regular side and not before the Judge Small Cause Courts. Reliance was placed on Raja Ram v. Bhagwan Das. : AIR 1973 All 82 and Heera Devi v. Hari Nath Chaurasia and others : 1988 AWC 1309 (Volume II)

(3.) FOR execution applications the scope of enquiry has been provided under Section 47 of the Code. It is well settled principle of law that the execution court cannot go behind the decree except in the cases where the decree passed is a nullity. In the instant case the applicant did not raise objection that the decree was a nullity, rather objections were raised that notice under Section 106 of the Transfer of Property Act was illegal and that one room was occupied by the tenant, as alleged by the plaintiff, after service of notice to quit, hence instead of a portion of accommodation the suit must have been filed on regular side. Suffice it to say that a finding of fact was recorded by the Judge, Small Cause Courts that the entire accommodation on the ground floor was in the occupation of the defendant and the plaintiff's case that one additional room was occupied after the service of notice to quit was found to be incorrect. The validity of notice was also considered This Court upheld the validity of notice under Section 106 of the Transfer of Property Act and also approved the findings in respect of the entire accommodation on the ground floor being let out to the defendant applicant by the plaintiff landlord. Hence these are the findings of fact and cannot be assailed The execution court can go behind the decree only if the decree was proved to be a nullity or the court inherently lacked jurisdiction to pass the decree Since the suit was decreed by this Court in Civil Revision and the defendant applicant did not prefer an appeal before the Supreme Court, hence the legality or otherwise of the judgment of this Court cannot be gone into in revision under Section 115 of the Code. Under Section 115 of the Code the power of revision has been given to this Court only against any judgment rendered or order passed not opened to appeal by the subordinate court. This Court under Section 115 cannot entertain a revision against the final judgment passed in an earlier revision under Section 115 of the Code or under Section 25 of Provincial Small Causes Courts Act by this Court, The scope of Section 115 was to correct the error of jurisdiction or illegality or irregularity and the procedure adopted by the court subordinate to the High Court and not in any judgment rendered by the High Court itself. The power under Section 115 is not that the High Court itself can sit in judgment over the judgment rendered by any Judge of this Court.