DHANJIBHAI KHIYASHIBHAI GUJRATHI Vs. DAULATBEE MARD NAJAKALI

JUDGEMENT

(1.) THIS appeal arises from execution proceedings and it raises a short question of law under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948. The question arises in this way : Survey No. 8 Shevgaon belonged to Kazi Mahamad. Kazi Mahamad entered into an agreement with Dhanjibhai and promised to execute a lease in favour of Dhanjibhai for 99 years. The lease was to come into operation from October 1, 1945. Contrary to this agreement however Kazi Mahamad executed a lease in favour of Mir Najakali for 75 years. That led to Civil Suit No. 429 of 1945 by Dhanjibhai, in which Dhanjibhai claimed specific performance of the agreement to lease. To this suit Kazi Mahamad was, impleaded as defendant No. 1 and his lessee Mir Najakali was impleaded as defendant No. 2. This suit ended in a decree in favour of the plaintiff on October 10, 1947. By the decree an order was passed calling upon defendant No. 1 to execute a lease in favour of the plaintiff. The decree further provided that if defendant No. 1 failed to execute the lease, the Court would take steps to do the needful in that matter. The decree also provided that after the deed of lease was executed, the plaintiff should recover possession of the suit land from the defendants. The decree also allowed mesne profits to the plaintiff from October 1, 1945, and an inquiry was ordered to be made under Order XX, Rule 12(c) of the Civil Procedure Code. An appeal was preferred against this decree, but it was dismissed and in the result the decree of the trial Court was confirmed. On September 28, 1950, the present darkhast application was filed by the decree -holder and in the application execution of the rent -note was claimed in terms of the decree. The executing Court directed the Nazir to execute the lease on behalf of the Court and the decree -holder was directed to deposit Rs. 10 for costs of the execution and registration, of the rent -note. This order has been reversed by the appellate Court on the ground that it offends against the provisions of Section 63 of the Tenancy Act. As a result of this finding recorded by the lower appellate Court the darkhast filed by the decree -holder has been dismissed with costs throughout. It is this order which has given rise to the present second appeal. That is how the only question, which arises for our decision in this appeal, is whether in view of the provisions of Section 63 of the Tenancy Act it is open to the executing Court to pass a lease in favour of the decree -holder.

(2.) SECTION 63(1) of the Bombay Tenancy and Agricultural Lands Act, 194S, provides inter alia that save as provided in this Act, no sale including sales in execution of a decree of a civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land or interest therein, shall be valid in favour of a person who is not an agriculturist. It is common ground that the decree -holder is not an agriculturist and it is obvious, that if a lease had been executed in favour of the decree -holder by the lessor and the provisions of Section 63(1) were applicable to the lease, then the lease would have been void. The lower appellate Court has held that the prohibition contained in Section 63(1) applies to sales in execution and it really makes no difference to the application of Section 63 that the question of executing the lease arises in execution proceedings. In substance he has held that by executing the decree and directing a lease to be executed in favour of the decree -holder the provisions of Section 63 would be offended and so the executing Court should not direct the execution of the lease even in execution proceedings. In dealing with this question two considerations would be relevant. The question has been raised in execution proceedings and the jurisdiction of the executing Court to allow a challenge to the validity of the decree is circumscribed by certain well defined limitations. If a decree has been passed by a Court of competent jurisdiction, it would not be open to the executing Court to entertain the plea that the decree is contrary to any provisions of the law and can in that sense be regarded as opposed to law. A plea of this kind must be raised by proper proceedings, and unless proper proceedings have been taken and the plea against the validity of the decree has been raised and rejected, it would be outside the jurisdiction of the executing Court to make the validity of the decree a subject -matter of adjudication in execution proceedings. In this connection it is necessary to draw a distinction between a decree which is opposed to law and a decree which is a nullity in the sense that it is altogether void. Every decree which is opposed to law cannot be properly described as a nullity. It is only in respect of a decree which can be regarded as nullity or wholly void that the executing Court would be justified in refusing to execute it. This point has been considered by Mr. Justice Vyas and myself in Dhondi Tukaram v. Dadoo Piraji (1952) 55 Bom. L.R. 663. It is, however, urged by Mr. Gupte for the respondents that even though the decree in question may not be a nullity, it would not be competent to the executing Court to enforce the decree because of the provisions of Section 63 of the Tenancy Act; and in support of this argument we have been referred to the decision of Broomfield and Mackslin JJ., in Bai Suraj v. Haribhai Motabhai : AIR1943Bom54 . In that case the plea against the executability of the decree was raised under Section 1 of the Bhagdari and Narwadari Act. In upholding the plea Mr. Justice Broomfield observed that though the general rule no doubt was that when a proper application is made for the execution of a decree which is not a nullity the Court cannotrefuse to execute it in the case before them there was a special statutory prohibition 'which was addressed to the Court itself and which made execution illegal quite apart from whether the decree was good or bad as a decree. Inasmuch as Section 1 of the Bhagdari and Narwadari Act specifically and expressly directed that no civil Court shall execute a decree or issue a warrant for possession or any process in fact contrary to the provisions of the said section, the executing Court was justified in complying with the mandatory directions issued to civil Courts and in refusing to execute the decree. It may be conceded that though a decree may not be a nullity and in that sense though it may not be open to the executing Court to entertain a plea against the validity of a decree, if the execution of such a decree itself is barred by a statutory prohibition which is addressed to civil Courts, as in the case of Section 1 of the Bhagdari and Narwadari Act, it would be the duty of the executing Courts to comply with the statutory prohibition and to refuse to execute such a decree. Whether or not the prohibition contained in Section 63 of the Tenancy Act amounts to such a direction to the executing Court as would justify the executing Court in refusing to execute the decree it is unnecessary for us to consider in the present appeal. As I will presently point out, Section 63 cannot, in our opinion, be invoked in the present proceedings at all. That is why it is not necessary for us to decide whether the effect of Section 63 (1) would be similar to the effect of Section 1 of the Bhagdari and Narwadari Act; and that takes us to the second relevant consideration in this appeal.

(3.) IN the result, the appeal must be allowed, the order passed by the lower appellate Court must be set aside and that of the executing Court restored with costs throughout.