RAJNESH SRIVASTAVA Vs. X ADDL DISTRICT JUDGE

JUDGEMENT

(1.) HEARD counsel for the petitioner and perused the record. This petition is directed against concurrent orders dated 13.5.2005 and 7.3.2009 by which the objection of the petitioner under section 47 C.P.C. pending in the execution case seeking execution of an eviction decree against him has been rejected. The respondent-landlord filed eviction suit no. 465 of 1994 before the Judge, Small Causes Court, Kanpur Nagar with the allegation that the petitioner was a plaintiff-tenant in premises no. 116/297, Rawatpur in Kanpur Nagar at the rate of Rs.60/- per month and despite repeated demand, he failed to pay rent from 1.4.1989 and further he has also made material alteration. But, despite notice, neither he vacated the premises nor paid the rent. Notice having been duly served on him but he failed to appear or file any written statement, thus the suit proceeded exparte and was decreed vide judgement and order dated 30.9.1995. The petitioner neither made any application for recall of the exparte judgement nor challenged it before any competent court and therefore an execution case no. 8 of 1996 was filed for execution of the decree. The matter remained pending for years together where the petitioner earlier filed objection under section 47 C.P.C. which was registered as Misc. Case No. 49/74 of 1996 but the same was dismissed for non-prosecution on 10.5.1996. However, he again filed another objection under section 47 C.P.C. claiming that the decree was void which was again registered as Misc. Case No. 96/74 of 2003 and the same was rejected by the Executing Court on 13.5.2005. The resultant revision was also rejected by the order dated 7.3.2009. Both these orders are under challenge in this petition. It is urged on behalf of the petitioner that the Judge, Small Causes Court did not frame any issue or point for determination before rendering the decree and therefore, it was void and inexecutable. In support of his contention, he has mainly relied upon a decision of the Apex Court rendered in the case of Rameshwar Dayal Vs. Banda (dead) through his L.Rs. [1993 (1) A.R.C. 249]. As noted above, it is not denied that the petitioner, who claims to be a practising lawyer in the District Court at Kanpur Nagar, neither filed his written statement before the trial court or filed any application for recall of the exparte judgement nor did he challenge the exparte judgement by filing an appeal or revision before any competent court. It is no doubt true that where a decree is a nullity and has been passed by a Court entirely lacking in jurisdiction, the Executing Court can go behind the decree under section 47 C.P.C. but it cannot be said that a judgement of Judge, Small Causes Court which is not in accordance with the provisions of Order XX Rule 4 C.P.C. would be a nullity. Order XX Rule-4 (1) C.P.C. provides that the judgement of a Judge, Small Causes Court need not contain more than the points for determination and decision thereon. The Judge, Small Causes Court must disclose the point for determination and accordingly it lays down the guideline for writing a judgement which is subject to scrutiny by a Court exercising power of revision under section 25 of Provincial Small Cause Courts Act where a judgement not in accordance with the provisions of Order XX Rule-4 C.P.C. can be set aside but it cannot be said that such a judgement would be without jurisdiction and a nullity merely because it is not in accordance with Order XX Rule-4 C.P.C. There is a clear distinction between a decree which is a nullity and a decree which is not in accordance with law. A decree would only be a nullity when the Court lacks inherent jurisdiction to pass it or it is passed against a dead person or against any substantive provisions of law but a decree which is not in accordance with law cannot itself be treated as a nullity. The Apex Court in the case of Hira Lal Patni Vs. Sri Kali Nath [AIR 1962 S.C. 199] has held that the validity of a decree can be challenged in execution proceedings only on the ground of inherent lack of jurisdiction in the sense that it could not have taken cognizance of the case. There is no provision either in the C.P.C. or under the Small Causes Court Act that a decree not in accordance with provisions of Order XX Rule-4 C.P.C. would be a nullity. There can be no quarrel with the proposition laid-down by the Apex Court in the case of Rameshwar Dayal (Supra) but the facts of the said case are entirely different. In that case one of the defendants had filed a written statement and taken up plea therein that he was the owner of the property but the Judge, Small Causes Court did not take that into account or considered this point for determination and in these circumstances, the Supreme Court had held that the decree would not bound that defendant who had filed his written statement. However, it held that the decree would bound against other defendants, who had not filed any written statement. Therefore, the ratio would not apply in the present case. No other point has been urged. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.