Andhra HC (Pre-Telangana)
D. Satyanarayana Rao vs Vasudev Asrani And Another on 9 April, 2001
Equivalent citations: 2001(3)ALD510, 2001(3)ALT544, 2001 A I H C 2761, (2001) 3 ANDH LT 544, (2001) 3 CIVILCOURTC 632, (2002) 1 RENCR 1, (2001) 2 RENTLR 99, (2001) 3 ANDHLD 510
Author: S.B. Sinha
Bench: S.B. Sinha
ORDER
1. This revision is directed against an order dated 22-2-1988 passed in EP No.25 of 1987 whereby and whereunder the learned trial Judge has held that the decree passed in favour of the petitioner was not an executable one.
2. The petitioner herein filed a suit OS No.3863 of 1980 before the XI Assistant Judge, City Civil Court, Secunderabad, for recovery of possession and mesne profits against the respondent-judgment debtor and, on 24-10-1983, the same was decreed in'' favour of the petitioner herein. Thereafter, an application purported to be under Order XXI, Rule 35 of the Code of Civil Procedure was filed for delivery of possession of immovable property for a sum of Rs.1,028/- against the judgment Debtor No.l and the schedule of property mentioned in the application. An objection was, however, raised by the judgment debtor that me execution petition was not maintainable. The learned executing Court concurred with the said contention of the judgment debtor and in support thereof relied upon a decision of the Apex Court in Motor General Traders v. State of A.P., AIR 1984 SC 121.
3. Mr. Ranganathan, the learned Counsel appearing on behalf of the petitioner submits that the learned Executing Court went wrong in passing the impugned order insofar as it had no jurisdiction to go beyond the decree. The learned Counsel would contend that the question, which had been gone into as an issue in the suit, is as to whether the judgment debtor-defendant was in wrongful occupation of the suit schedule property or not could not have been re-opened. The learned Counsel would urge that in this view of the matter the impugned judgment must be set aside. In support of the said contention, reliance has been placed on the judgment of a learned single Judge of this Court in Union Bank v. M.C. Ankaiah, 1989 (1) ALT 239.
4. It is not in dispute that the petitioner herein filed the aforementioned suit as a landlord. It is also not in dispute that the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter would be referred to as 'the said Act' for the sake of brevity) would apply in the instant case.
5. In Motor General Traders (supra) a question as to whether Section 32(b) of the said Act is unconstitutional or not has come up for consideration before the Apex Court, and the Apex Court held that the said provision, being discriminatory in nature, was unconstitutional. The Apex Court also held:
"21. .........With the passage of time, the validity of historical considerations on which Section 87-B is founded will wear out and the continuance of the said section in the Code of Civil Procedure may later be open to serious challenge.
22.........there is a firm foundation laid in support of the provision that what once a non-discriminatory piece of legislation may in course of time become discriminatory and be exposed to a successful challenge on the ground that it violated Article 14 of the Constitution. This is a sufficient answer to the contention that if at the time when the Act was enacted Section 32 (b) of the Act was not unconstitutional, it cannot at any time thereafter be challenged on the ground of unconstitutionality."
6. It is not in dispute that in terms ofthe provisions of the said Act and petitioner was required to file an application before the Rent Controller. He did not do so. The XI Assistant Judge, City Civil Court, Secunderabad, was not the appropriate Court, before whom a suit under the said Act could be filed. The said Court was, thus, lacking inherent jurisdiction in entertaining the suit, as a result whereof, the decree passed by it became a nullity.
7. The decision of a learned single Judge of this Court in Union Bank (supra) has no application in the instant case, inasmuch as, therein, the question which fell for consideration was as to whether the executing Court can go behind the decree with a view to find out as to whether the Court passing the decree had a requisite pecuniary jurisdiction or not. Having regard to the provisions contained in Section 21(A) of the Code of Civil Procedure it was held that such a question could not have been raised in the execution petition.
8. In the instant case, admittedly, the suit was filed before the Court, which did not have any jurisdiction. An order passed by a Court having no jurisdiction in relation thereto would be a nullity. In Kiran Singh v. Chaman Paswan, , the Apex Court at paragraph 6 of the judgment held;
"6. ........,.,It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.....,....."
9. Yet again, the Apex Court in Pandurang v. State of Maharashtra, , held that even a right order passed by a wrong forum would be a non-coramjudis. Such a question of inherent lack of jurisdiction can be raised even in collateral proceedings.
10. For the reasons aforementioned, it cannot be said that the learned executing Court erred in law in passing the impugned order. There is no merit in this civil revision petition and the same is accordingly dismissed. No order as to costs.