ANIL KUMAR DAS Vs. ARUN KUMAR BANERJEE

JUDGEMENT

(1.) THIS is a second miscellaneous appeal against an order of the Court of Appeal below affirming an order of the executing Court allowing a petition under section 47 of the Code of Civil Procedure. The plaintiff instituted a suit against the defendant judgment-debtor for ejectment and for damages as also for arrears of rent. At the date when the suit was instituted, there is no dispute before me that the Trial Court had jurisdiction to entertain the suit. "but the parties entered into a compromise. Under the terms of the compromise the plaintiff withdrew his claim for ejectment and the defendant suffered a decree for a sum of Rs. 3,200/ -. The compromise decree stated that the aforesaid sum of Rs. 3,200/-was due on account of arrears of rent.

(2.) AN objection was taken under section 47 of the Code of Civil Procedure whereby the judgment-debtor asserted that the Trial Court had no pecuniary jurisdiction for passing a decree for a sum of Rs. 3,200/- and the pecuniary limit of the Trial Court was up to Rs. 2,000/ -. This objection was upheld by the Trial Court and the decree was declared null and void and the objection under section 47 of the Code was allowed and the petition for execution was dismissed. Against that order, there was an appeal to the Court of Appeal below and that appeal was dismissed. Mr. Shyama Charan Mitter on behalf of the decree-holder urged two points. The first is, the trial Court had complete jurisdiction to grant the decree and the decree was not null nor void. Secondly, the executing court could not go behind the decree and the question whether the Trial Court had pecuniary jurisdiction or not, should have been raised at the Trial Court and the defendant, having suffered a decree on compromise, is estopped from challenging the decree on the ground of nullity. With regard to the first point, it is indeed true that the decree was stated to be one for a sum of Rs. 3,200/- on account of arrears of rent and, if it was the decree for arrears of rent, it may be said that the decree was bad; but at the date when the suit was instituted, the arrears of rent would not amount to Rs. 3,200/ -.

(3.) THE plaintiff applied for arrears of rent and for mesne profits. The plaintiff also stated that the suit was instituted after the tenancy was determined. There is no statement in the compromise petition that the original tenancy would continue and that the notice to quit had been waived. Had there been any such statement, namely, had the notice to quit been waived, then the original tenancy would continue and the amount would be arrears of rent and that arrears of rent would accrue subsequent to the date of the suit. The statement is that the claim for ejectment was withdrawn. The result is that a new tenancy was created with effect from the date of the solenama and the sum that fell due to the plaintiff landlord on account of use and occupation of the defendant would be really mesne profits and not arrears of rent, because there was no relationship of landlord and tenant between the parties during the time the suit was pending and till the date of the solenama. In view of the decision in our Full Bench between Bidhya Dhar and Manindra Nath (1) reported in 29 C. W. N. , 869, if the assessment on mesne profits exceeds the pecuniary jurisdiction of the Court, the decree is not null nor void. I, therefore, construe the decree to mean that the sum of Rs. 3,200/- was awarded not on arrears of rent as between the landlord and the tenant but as mesne profits as between the ex-landlord and ex-tenant. Therefore, on this ground I cannot hold that the decree was null and void or without jurisdiction. The next question is, supposing the Trial Court had not the pecuniary jurisdiction, would the decree passed by the Trial Court in a suit, which was instituted in a Court competent to try the suit, be considered to be null and void? Mr. Sanyal refers to the Full Bench decision in Gora Chand Haider's case reported in (2) 53 Calcutta, 166, Full Bench. Mr. Shyama Charan Mitter has, however, referred to a recent decision of the Supreme Court in (3) A. I. R. 1962, S. C. , page 199, between hiralal v. Kalinath. He has further referred to another Full Bench decision of the Patna High Court reported in (4) I. L. R. 39, Patna, page 121 between Shyam Nandan v. Dhanapati Kuer.