P KRISHNAN NAIR Vs. RAMCHANDRA VITHAL SANGHAVI

JUDGEMENT

(1.) THE plaintiff Ramchandra VI-that Sanghavi filed Suit No. 6578 of 1950 in the Court of Small Causes at Bombay against three deiendants claiming a decree for possession of a portion of the ground floor of a building known as 'vishiani Building' Lakshmi Napoo Road, Matun-ga, Bombay alleging that he was a sub-tenant of the suit premises. The plaintiff claimed a declaration of his right and also asked for an injunction restraining defendants 1 and 2, their servants and agents from interfering in any way with or obstructing the right, title and interest of the plaintiff as a sub-tenant in the portion of the premises described in. the plaint. The relief for declaration was plainly unnecessary because it was only if the plaintiff proved that he was a tenant or a sub-tenant that he could obtain a decree for possession.

(2.) THE trial Court decreed the plaintiff's suit, and in appeal the decree, passed by the trial Court was confirmed. Thereafter execution was taken out by the plaintiff, and in execution the plaintiff was resisted by a third person. P. Krishna Nair, who claimed to be a transferee pendente lite of the rights of defendant 2. Evidently as a transferee pendente lite of one of the defendants he was a representative of that defendant, and a decree passed against defendant 2 was. capable of execution against P. Krishna Nair. But Krishna Nair contended in execution proceedings that the decree passed by the Court which tried the suit was a nullity. The learned trial Judge held that the decree was not a nullity and accordingly directed that a warrant for possession do issue against Krishna Nair after 5-3-1953. Against the order passed by the trial Court, an appeal was preferred to the Appeal Court of the Court of Small Causes at Bombay. The Appeal Court held that the decree passed by the Court which tried the suit may have been passed without jurisdiction, but the contention could not be permitted to be raised in execution proceedings, because the question as to whether the Court had or had no jurisdiction to entertain the suit must be regarded as finally decided by the decree of the Court which tried the suit and by the Court which decided the appeal. On the ground of 'res judicata' the decision of the trial Court was confirmed by the Appeal Court. It is against the decision of the Appeal Court of the Court of Small Causes, Bombay that this revision application has been filed.

(3.) MR. Jethmalani who appears on behalf of the petitioner has contended that the learned Judges of the Appeal Court having held that the decree passed by the trial Court was without jurisdiction, the rule of 'res judicata' cannot operate so as to enable execution of a decree passed by a Court which had no jurisdiction to pass it. It is well settled that a decree which is passed without jurisdiction to pass it is a nullity, and the question as to the absence of jurisdiction may be raised even in execution proceedings or in collateral proceedings. But the rule is subject to the exception that where an objection is raised in execution proceedings as to. the want or absence of jurisdiction in the Court to pass the decree, the decree must be "apparently" without jurisdiction that is on the face of it the decree must show that it was passed by a Court which was incompetent to pass it. If for purposes of ascertaining whether the Court which passed it had or had no jurisdiction to pass it, it is necessary to make investigation as to the jurisdiction of the Court then the executing Court has no competence to permit that investigation to be made. The reason for such rule is clear. The executing Court is normally bound to execute the decree as it stands. It is not permissible for the executing Court to sit in appeal over decision of the Court which passed the decree and to "refuse to execute the decree because the reasons which appealed to the Court which passed the decree do not appeal to the executing Court.