SK FIROJ Vs. SAKHYA SINGHA MULLICK

JUDGEMENT

(1.) The opposite parties filed Ejectment Suit No. 106 of 1984 in the Court of Munsif, Purulia against one Hem Chandra Kar, petitioners and proforma opposite parties for eviction of the defendants in the suit from the suit property. It was alleged that Hem Chandra was a monthly tenant at a rental of Rs. 30/-. The said tenant had sub-let the suit premises to the father of the petitioners and proforma opposite party No. 4 without consent of the landlord. The plaintiff-opposite parties 1 and 2 served notice both under section 106 of the Transfer of Property Act and under section 13(6) of the West Bengal Premises Tenancy Act asking them to vacate the suit property. The suit ended in an ex parte decree on 20th June, 1986. In the ex parte judgment there is no 5nding as to service of a valid notice under section 13(6) of the West Bengal Premises Tenancy Act (hereinafter called the Act).

(2.) The said decree is sought to be executed by virtue of Title Execution Case no. 17 of 1986. The petitioners had filed an objection under section 47 C.P. Code challenging the executability of the decree. It was urged before the executing court that the trial court did not find in the ex parte judgment that a valid notice under section 13 (6) of the Act was served upon the tenant. In the absence of such a notice the Court had no jurisdiction to pass a decree. The learned Munsif overruled the objection mainly on two grounds, viz. the court cannot challenge its own decree and that the petitioners being sub-tenants have no right to challenge the decree. By order no. 52 dated 29.7.89 Munsif, Purulia dismissed Misc. Case No. 1 of 1989 filed under section 47 of- the Code of Civil Procedure.

(3.) Admittedly the plaintiffs alleged in the plaint that a valid notice was served upon the tenant. I have beep, taken, through the ex parte judgment of the trial court. Trial court found default and granted eviction decree on that account. In the body of the judgment there is neither a finding as to the validity of a notice nor service thereof. Mr. Banerjee contends that the trial court had no jurisdiction to entertain a suit without a notice and so the decree is void. Plaint is not silent as to the service of a valid notice. The Court, however, does not find that there was no service of notice. Therefore, it cannot be urged that the suit for eviction was filed without a notice under section 13(6) of the Act. In the instant case there is an absence of finding as to the service of valid notice. Still the court granted a decree. Evidently therefore grant of a decree without a ending as to service of a valid notice is erroneous. Even a decree despite a Ending that no valid notice was served is also erroneous. Such an erroneous judgment would be appealable. Instead, objection is untenable. We must not overlook the distinction between an erroneous or illegal judgment and a judgment without jurisdiction or a void judgment. While the former is appealable the latter is unexecutable and can even be challenged in a collateral proceeding.