SHANKER LAL Vs. GANGA BAI

JUDGEMENT

(1.) The non-petitioner plaintiff filed a suit for rent and eviction against the petitioner who was the defendant in the suit. The suit was on the ground of default in payment of rent and some more grounds. The defendant petitioner appeared and contested the suit. An exparte decree was passed on 16th March, 1991 by which the suit was decreed and before passing the exparte decree the rent payable under section 13(3) of the Rajasthan Premises (Control of Rent and Eviction) Act (hereinafter referred to as the Act), was determined on 22.9.1990 and rent was not deposited. The defence against eviction was struck off. Subsequently according to the petitioner he came to know about the exparte decree in March, 1992 and he moved an application for setting aside the exparte decree. Along with this an application for condonation of delay was filed but the trial court rejected this application. He preferred an appeal before the District Judge but the same was also rejected. Then he preferred a revision petition before this court which was allowed and the matter was remanded to the District Judge, who ultimately dismissed the appeal. Meanwhile execution proceedings were pending and in those proceedings the petitioner preferred objections under Section 47 of the CPC and the same have been dismissed by the Civil Judge Kola by his order dated 16.7.1992. It is against this order dismissing the objections under section 47 CPC that the petitioner has preferred this revision petition. The contention of the learned counsel for the petitioner is that the decree sought to be executed is a nullity and as such it cannot be executed. This contention is based on the ground that at the time suit was filed in November, 1989 rent for five months only was due, hence ground of default was not available to the non-petitioner. It is contended that there is no finding of the trial court about the existence of personal necessity of the plaintiff land lord or on the other grounds on which the eviction was claimed and when basis for default goes away and the decree has been passed on ground of default in payment of rent then such a decree cannot be executed being a nullity. According to him ordinarily the executing court cannot go beyond the decree, but when the very basis of the decree is missing and the decree is a nullity then it is open to the executing court to refuse execution of the decree. A number of decisions have been relied upon by him, which are as under.

(2.) In Smt. Nai Bahu vs. Lala Kamnarayan and others, 1978 AIR(SC) 22, a compromise decree for eviction suit under the Rent Act was passed and the decree was to be executed after five years. The compromise decree was challenged as a nullity on the ground that the decree incorporated a lease of five years and in absence of registration it was invalid. It was observed that a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties and the court has to be satisfied whether a statutory ground for eviction has been pleaded which the tenant had admitted by the compromise. When a compromise decree is challenged as a nullity in the course of its execution the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in law. In this case after considering the terms of the compromise and the whole tenor of the compromise petition it was held that the decree was a lawful decree of eviction founded on statutory ground and there was sufficient material to show that the trial court applied its mind and was satisfied that a valid decree under the M.P. Act could be passed.

(3.) In Nandi Bala Dassi vs. Bibhupi Bhushan Mukherjee, 1987 1 RCJ 521, the objection under section 47 CPC was raised in execution and it was held that the executing court can go behind the decree in deciding the executability of the decree while deciding an objection under section 47 CPC and if the court was not satisfied about the existence of any ground under section 13(1) of the West Bengal Premises Tenancy Act then the decree could be held to be nullity. In this case the court passing the decree had not come to any finding at all as to whether any of the alleged grounds for eviction as made in the plaint had been proved.