Calcutta High Court
Mehta Suraya And I.P.M. Industries ... vs United Investment Corporation on 5 February, 2002
Equivalent citations: AIR2002CAL108, (2002)2CALLT272(HC), AIR 2002 CALCUTTA 108, (2002) 2 CALLT 272 (2002) 2 ICC 394, (2002) 2 ICC 394
Author: Dilip Kumar Seth
Bench: Dilip Kumar Seth
JUDGMENT
1. The decree in C.S. No. 183 of 1999 was put to execution In G.A. No, 3750 of 2000 by the decree holder Mehta Suraya. The applicant in G.A. No. 3 of 2001, has prayed for setting aside the order amending the said decree and for dismissal of the execution application. The said applicants had also filed a suit being C.S. No. 171 of 2001 for declaration that the decree dated llth October, 1999 passed In C.S. No. 183 of 1999 (Mehta Suraya Pvt. Ltd. v. United Investment Corporation) and the appellate decree dated 3rd January 2000 passed in APOT No. 913 of 1999 (United Investment Corporation v. Mehta Surya Pvt. Ltd.) by this Hon'ble Court, were obtained in collusion and connivance with each other and by practicing fraud upon this Hon'ble Court and as such the said decrees are fraudulent, illegal null and void and be cancelled and set aside. T. No. 240 of 2001 has been filed in the said C.S. No. 171 of 2001 for receiver and injunction. These 3 applications being G.A. No. 3750 of 2000, G.A. No. 3 of 2001 and T. No. 240 of 2001 were taken up for hearing by consent of the parties, since the decision on one application will affect the other and the question raised in each of these applications are interrelated and mostly common in each other.
Facts:
2. In order to decide the issues raised in relation to the said 3 applications, it would be relevant to refer to the facts in the form of List of dates as hereafter:
16th July 1962 :
Mehta Suraya granted a lease of vacant land at Ezra Street, Calcutta for 33 years with two options for renewal for two further successive period of 33 years each, to its sister concern United Investment Corporation (UIC) (being the defendant No. 1 herein) (Pg. 87 of T 240 of 2001.1965
:
UIC constructed a 12 storeyed building on the said land known as World Trade Centre (hereinafter referred to as "the said building").1965
onwards :
UIC sub-let various portions of the said building to various tenants, who have since been occupying the said building and regularly paying rent, service charges and electricity charges to UIC.
23rd September 1975 :
Supplemental Deed was executed and registered by and between UIC and Mehta Suraya confirming the power of UIC to sub-let any part of the building at its absolute discretion without further permission from Mehta Suraya (Pg, 98 of T. 240 of 2001.) 2nd July 1995 :
Before the original term of 33 years expired UIC exercised its option for renewal of the original lease for a further term of 33 years i.e., till 2028.1997
:
The Mehta and Suraya families and their associates, who were all along the owners, shareholders and partners of UIC and Mehta Suraya, transferred their rights and interests in Mehta Suraya and UIC to a group consisting of Bachraj Dugar, Sudhir Prakash and their representatives.
15th December 1997 :
By a letter written by UIC to Mehta Suraya, UIC purported to terminate the said lease and agreed to deliver vacant possession of the said building with effect from 1st July 1998. (Pg. 104 of T 240/2001) 26th March 1999 :
Mehta Suraya instituted a suit being C.S. No. 183 of 1999 against UIC for recovery of vacant possession of the land without any mention about the building and for other reliefs. The tenants of UIC were not made parties to this suit.
20th April 1999 :
On the basis of the letter dated 15th December, 1997, an application was filed by Mehta Suraya for judgment upon admission and for eviction of UIC from the said land.
11th October 1999 :
Hon'ble Kalyan Jyoti Sengupta, J., at the hearing of the application for judgment on admission, was pleased to pass an ejectment decree only against UIC on the basis of the admission contained in the said letter dated 15th December 1997. (Pg. 105)(T 240 of 2001) December 1999 :
UIC preferred an appeal against the ejectment decree.
3rd January 2000 :
The appellate Court after hearing the appeal of UIC on merits, dismissed the appeal.
8th May 2000 :
Special Leave Petition preferred against the order dated 3rd January, 2000 was dismissed.
12th July 2000 :
Decree dated 11th October, 1999 was signed by Hon'ble Mr. Kalyan Jyoti Sengupta, J.
and subsequently it was filed.
5th August 2000 :
Mehta Suraya filed an application for amendment of the decree, the plaint and also the application for Judgment upon admission, which had already been disposed of by the Judgment and decree dated 11th October, 1999, since been signed and filed.
17th August 2000 & 22nd August 2000 :
Hon'ble Pinaki Chandra Ghose, J, was pleased to allow the application of Mehta Suraya directing amendment of the decree already signed by Hon'ble Kalyan Jyoti Sengupta, J., so as to include the words including the ten-storeyed building standing thereon" and also allowing the application for amendment of the plaint and the application for judgment upon admission.
28th August 2000 :
IPM & Others being the plaintiff in CS 171 of 2001 applicants in GA 3 of 2001 and T 240 of 2001 learnt, for the first time, about the ejectment suit filed by Mehta Suraya against UIC. According to IPM & Ors. the ejectment suit was collusively filed and the ejectment decree was obtained fraudulently suppressing the existence of more than 17 different sub-lessees.
September 2000 :
Mehta Suraya filed an application for execution of the decree passed by Hon'ble Kalyan Jyoti Sengupta, J., as amended by orders dated 17th August, 2000 and 22nd August 2000 passed by Hon'ble Pinaki Chandra Ghosh, J.
16th November 2000 :
Hon'ble Pinaki Chandra, J. was pleased to direct Mehta Suraya to furnish copies of all pleadings including the application for amendment to the plaintiffs being (IPM & Others).
2nd January 2001 :
IPM & Ors. filed G.A. No. 3 of 2001 for setting aside the order amending the decree and for dismissal of the execution application G.A. No. 3750 of 2000, seeking to execute the amended decree passed in C.S. No. 183 of 1999.
15th March 2001 :
IPM & Ors. filed C.S. No. 171 of 2001 for declaration that the decree passed in C.S. No. 183 of 1999 and in the appeal thereout, were collusive and fraudulent and as such a nullity and void and for setting aside the said decree.
28th March 2001 :
IPM & Ors. Filed T. No. 240 of 2001 in C.S. No. 171 of 2001 for receiver and injunction.
Arguments:
3. It is in this background, the present case is being argued by the respective counsel for the respective parties in support or against the said 3 respective applications being G.A. No. 3750 of 2000, G.A. No. 3 of 2001 and T. No. 240 of 2001.
4. Mr. Aninda Mitra, assisted by Mr. P.K. Roy and Mr. Ranjan Dev, appearing for and on behalf of Mehta Suraya had supported the decree and the execution and objected to both the applications filed by IPM and Ors. Mr. Kapoor, appearing for 1PM & Ors, had objected to the execution of the decree and supported the said two applications filed by IPM. Mr. Bachawat, appearing on behalf of Engineering Promotion Council had also sought to intervene. He supported Mr. Kapoor. Mr. Pratap Chatterjee appeared on behalf of the intervenor Export Inspection Agency and supported Mr. Kapoor and Mr. Bachawat. Mr. Bhaskar Sen, appearing on behalf of the intervenor New India Assuarance, also supported Mr. Kapoor.
5. I may now refer to the respective submissions made by the respective counsel as hereafter.
6. Mr. Kapoor's argument may be summarized thus :
6.1. The decree of the trial Court have merged in that of the appeal Court and the appeal having been dismissed on merit and not under Order 41 Rule 11 CPC the same cannot be brought within the purview of Section 153A CPC. Inasmuch as an appeal preferred under Clause 15 of the Letter Patent is not required to be admitted under Order 41 Rule 11 CPC. In the present case the appeal having been disposed of, after issuing notice to the parties and hearing them, it was not an order within a meaning of Order 41 Rule 11 CPC. The amendment that was sought to be brought about, does not come within the purview of Section 152 CPC. As such the amendment was without jurisdiction and thus the decree as amended is inexecutable. In support of his respective contentions he relied on Gojer Brothers (P) Ltd. v. Sri Ratan Lal Singh , Smt Chandra Kala Devi v. Central Bank of India Ltd., , Kannan and Ors.s v. Narayant and Ors.s Dwaraka Das v. State of Madhya Pradesh and Anr. .
6.2. Since IPM Industries, hereinafter referred to as IPM, though a subtenant, not being a party to the suit, is not bound by the decree, since, as sub-tenant, it has an independent right. He relied on Beni Madhau Mehrotra v. Howrah Flour Mills ; Tirath Ram Gupta v. Gum Bachan Stngh . The lease can be determined only under Section 111 of T.P. Act. Notice to quit can be issued under Section 106 of the said Act. section 111(h) T.P. Act is to be read along with Section 106 of that Act. Notice to quit can be issued, only if it is a monthly lease; in other cases only where the lease contains express provision. Therefore, the benefit of a lease for a fixed term can be enforced by sub lessee in view of Section 108(e) T.P. Act. In support he relied on Para-10 of Tirath Ram (supra). Surrender is a voluntary act of the lessee. If it is made without the consent of sub-lessee, it does not bind the sub-lessee. In support he relied on Bent Madhau Mehrotra (supra) and Suleman Hazi Ahmed Oomer v. Darab Shaw Ptroj Shaw Dubash AIR 1939 Bom 98. Sub lessee is not bound by the decree passed against the lessee, unless the decree determines the sub-lease as well. A voluntary and unilateral Act of lessee cannot determine the sublease. In support he relied on Sri Jagad Gugu Siddaswami Guru Gangadhar Swami Muru Savir Math v. Dakshina Maharashtra Digambar Jatn Sabha ; Sailendra Nath Bhattacharjee v. Bijon Lal Chakraborty AIR 1945 Cal 288; Gaya Nath Ghosh v. Amulya Chandra Sarkar . He had elaborated his contention on this ground to a great extent and had distinguished the decision cited by Mr. Mitra.
6.3. On the question of fraud and collusion, relating to facts, he had tried to make out a case of fraud between decree holder and the judgment debtor. He elaborated his submission referring to the details of the facts of the case and contended that fraud unravels everything. He relied on Indian Bank v. Satyom Fibres India Put. Ltd; . In the present case the supplementary lease dated 23.09.1975, permitting sub-lease, was neither pleaded nor produced. Withdrawing of a vital document, relevant to litigation, is a fraud upon Court. He relied on S.P. Chengalvaraya Naidu. v. Jagannath;
. He also contended collusion between the decree holder and the judgment debtor.
6.4. On the question of maintainability of the suit by the sub-lessee, he contended that when sub-lessee claims independent right to remain is possession and not as a representative of lessee, a suit is very much maintainable, relying on Gaya Nath Ghosh v. Amulya Chandra Sarkar . He contends that the executing Court cannot go behind the decree, relying on Urban Improvement Trust, Jodhpur v. Golcul Narain . In a fresh suit not in the execution, the question of fraud can be gone into, particularly, when the issue of sub-lease was not involved in the suit since decreed.
6.5. In view of the strong prima facie case made out, as elaborated by him, the relief sought for in the two applications being G.A. No. 3 of 2001 and T. No. 240 of 2001 be granted and G.A. No. 3750 of 2000 be dismissed.
7. Mr. Bachawat appearing on behalf of Engineering Export Promotion Council, in short EEPC, supported Mr. Kapoor and had contended that the suit between the decree holder and the Judgment debtor was collusive and fraudulent. The decree could not have been amended without amending the plaint. Therefore, the case does not come under the purview of Section 152 or 153A CPC. He had also elaborated his submission with regard to the inter se right of the lessee and sub-lessee and the effect of notice to quit or surrender and the collusion and fraud, referring to the details of the facts and the pleadings of the respective parties. He had also relied on some decisions to which reference will be made at appropriate stage.
8. Mr. Pratap Chatterjee, appearing on behalf of Export Inspection Agency, supported Mr. Kapoor and Mr. Bachawat and addressed the Court on merit and had contended with regard to the renewal and execution of the lease. According to him renewal of a lease requires execution of a new lease as was held in Para-7 in Delhi Development Authority v. Durga Chand Kaushish and contended that on the expiry of the lease, the sub-lessee becomes a monthly tenant. An unsuccessful attempt to create a lease results in itself a monthly tenancy protected by appropriate rent control legislation, as was held in Biswabani Pvt. Ltd. v. Santosh Kumar Dutta and Ors. and Ram Kumar Das v. Jagadish Chandra Deo, Dhabal Dev and Ors. . He also dealt with the question of collusion, fraud and termination of tenancy in details. He had referred to the provision of the West Bengal Premises Tenancy Act, particularly, Section 13(2) and had contended that the alleged surrender by the lessee in no way affects the rights and contention of the sub-lessee. In order to substantiate the question of collusion and fraud he relied on section 44 of the Evidence Act and on the decision in Mehboob Sahab v. Shaid Ismail .
9. Mr. Bhaskar Sen on behalf of New India Assurance contended that the name of New India Assurance is not included even in the execution application. Therefore, the execution cannot proceed against New India Assurance. In this case the lease was granted for a period of 10 years. Such lease is governed under the West Bengal Premises Tenancy Act. As such this lease is protected under Section 13(5) of the West Bengal Premises Tenancy Act, Alternatively, he contended that if the lease is governed by Transfer of Property Act then his client is still protected under Section 105 of the said Act, relying on para-23 and 35 of Anand Niwas Put. Ltd., v. Anandji Kalyani Pedhi of Ram Singh v. Vijoy Singh Surana .
10. Mr. Aninda Mitra learned counsel for the decree holder Mehta Suraya submitted as follows :
10.1. A decree against the lessee is binding on the sub-lessee, relying on Shallmar Tar Products Ltd. v. H. C. Sharma and Ors. ; and Shantilal Rampuria and Ors. v. Vega Trading Corporation and Ors. . Inasmuch as every sub-lessee obtains the sub-lease with the conscious knowledge that upon determination of the lease, the sub-lease will come to an end. The alleged grounds to establish an independent right of the sub-lessee are unsustainable. He denied fraud and collusion. He pointed out to the procedure followed in the case namely, the contesting of the application for decree on admission, the preferring of appeal and the S.L.P. to the Supreme Court. He further contended that even in a case between the lessee and the lessor, having common directors and shareholders, the decree for eviction, obtained ex parte by the landlord, was held not to be collusive in Rap Chand Gupta v. Raghu Vanshl (Pvt.) Ltd. & Anr. . The ground of eviction was solely based on notice to quit. The non-disclosure of the supplementary deed dated 2nd September, 1975 was, therefore, not a suppression, Inasmuch as it was irrelevant. The decree not being a collusive one, and there having been an express notice to quit, Section 115 of TP Act has no manner of aplication. He has elaborated the said contention with reference to the facts and the pleadings respectively. According to him it was not a surrender but a notice to quit. Inasmuch as surrender must be m praesenti. He relied on M. S. Ram Singh v. Bijay Singh Shurana & Anr. ; Bodenham v. Pritchard 107 All ER 130; Halsbury Vol. 27(1) Pare-524; (Mulla's TP Act page 1213). He had distinguished the decision in Kamlabal and Ors. v. Mangllal Dullchand & Mantri , in order to contend that the said decision is not an authority that a surrender can take place in future and it must not always be in praesenti. The executing Court cannot go behind the decree, as was held In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors. . According to him there is a distinction between error within Jurisdiction and without Jurisdiction, as was explained in Budhia Swain and Ors. v. Gopi Nath Dev and Ors. . In the present case there having been no lack of jurisdiction, the executing Court cannot go behind the decree. He also distinguished the decision in Smt. Shanti Devi v. Amal Kumar Banerjee AIR 1981 SC 1550, which laid down that a lease for a fixed tenure expires on the efflux of time, and contended that it does not lay down that a periodic lease cannot be terminated by a notice to quit. He also relied on Calcutta Credit Corporation & Anr.v. Happy Homes Pvt. Ltd, , to contend that the notice to quit, accepted by. the landlord, determined the lease. However, this question cannot be gone into at the stage of executing the decree.
10.2. According to him, under Section 153A CPC the trial Court can amend the decree. The decision cited by Mr. Kapoor, being pre 1976, when Section 153A was not Inserted in CPC, has no manner of application after Section 153A is inserted In CPC. According to him, the correction or amendment was made within the scope and ambit of Section 152 read with Section 153A CPC. Alternatively, he relied on Section 151 CPC, under which such amendment can be made. He also contended that the question without Jurisdiction, as enunclated in Hira Lal Patni v. Sri Kali Nath and Budhta Swain and Ors. v. Gopinath Das and Ors. has no manner of application, since those cases were dealing with the question altogether in different factual context. He has also distinguished the decision in Kannan and Ors. v. Narayani and Ors. . He further contended that in this case, the decision of the Division Bench in the appeal, was a decision within the meaning of Order 41 rule 11 CPC. On the other hand he relied on Para-4 of Ram Bharosey Lal v. Rameswar Dayal Chakkiwala and Ors. and contended that Section 153A CPC is an enabling provision. Relying on Mahavir Prosad Chowdhury v. Chandra Sekhar Sahai AIR 1915 Cal 586, he contends that Section 151 CPC can be taken aid of to correct a decree.
10.3. He then contends that the decree in respect of a lease of a land can very much be executed in respect of the building standing thereon. He relied on Jai Kissen Arora v. Raghunath Prasad Gupta . according to him the tenant can remove the structure until the decree for eviction is enforced. Once the eviction is enforced, the Judgment debtor has no right to enter into the land and the decree holder is free to deal with the building standing on the land. Therefore, the decree is very much executable, even if the sub-tenants may be governed by the Premises Tenancy Act inter se the lessee and sub-lessee. But it does not confer on the sub-tenant any independent right to resist the execution of the decree obtained by the lessor, as was held in Jai Kissen Arora v. Raghunath Prosad Gapta . Therefore, the application made by 1PM and Ors be dismissed and the execution do proceed. He also contended that no notice under Section 16 of West Bengal Premises Tenancy having been issued, the lessee cannot claim any independent right. He disputed the merger of the decree with that of the Appeal Court.
11. In reply, Mr. Kapoor contended that it is not only the amendment of the decree but also that of the plaint and of the application for decree on admission. Section 152 read with Section 153A CPC does not empower the Court to amend the plaint or the application for decree on admission. He relied on Para-7 of Kannan and Ors. v. Narayani and Ors. . He relied on Dwarka Das v. State of M.P. , and contended that Section 152 does not include omission or accidental sleep of the parties. He distinguished Mahavir Prasad Chowdhury v. Chandra Sekhar Sahai AIR 1915 Cal 586 cited by Mr. Mitra. On the question of surrender in praesenti he relied on Paras-20, 21, 23 of Kamala Bai and Ors. v. Mangilal Dulichand Mantri . Surrender concerns the making of agreement of the date of handing over possession. According to him, Jai Kissen Arora v. Raghunath Prasad Gupta , cited by Mr. Mitra, is distinguishable. In the said case there was no fixed time and no fraud was alleged. The other decision Calcutta Credit Corporation Ltd. v. Happy Homes Put. Ltd. AIR 1968 SC 417, cited by Mr. Mitra, is also distinguishable on facts, since collusion was not alleged in the said case.
12. Mr. Anindya Mitra wanted to add to his submission. Having regard to the facts and circumstances of this case, leave was granted. He contended that admittedly the lease was governed under the T.P. Act. It was a notice to quit and not a case of surrender. Section 115 T.P. Act, therefore, has no manner of application. None of the action either of Mehta Suraya or of UIC constituted surrender, not it was a collusive decree. At best, it may be a case of forfeiture, in which Section 115 does not apply. However, it is neither a surrender not a forfeiture, but a notice to quit. However, such question is beyond the precincts of the executing Court. It is not a case of lacking jurisdiction; he relied on Budhia Swain v. Gopi Nath Deb . Jai Kissen Arora v. Raghu Nath Prasad Gupta . Expeditious disposal is not a sign of collusion. From 26th May 1997 there was a total change in share holding, therefore, the collusion cannot be alleged. He also relied on Calcutta Credit Corporation v. Happy Homes Pvt. Ltd. AIR 1963 SC 475; M.S. Ram Singh v. Bijoy Singh Surana . The appeal was disposed of either under Order 41 Rule 11 CPC or Original Side Rules chapter 31 Rule 8. Therefore, Section 153A CPC is applicable. He elaborated that, even if, it cannot be done so, then, it can be so done under Section 151 CPC. He relied on Subhan Buksh v. Berendra Kishore Manikya AIR 1915 Cal 586.
13. Similar leave was granted to Mr. Bachwat. He contended that exercising right to renew a lease, can be exercised without a fresh deed when accepted by lessor. He relied on Ranjit Kumar Dutta v. Tapan Kumar Saha AIR 1997 Cal 78; Sayeed Ali Kaiser v. Mst. Ayesha Begum AIR 1997 Cal 1977(1) CLJ 345 (para-5), which followed the decision in Satadal Basini and Pravin Chandra Liladhar v. Madan Mohan Jaidka 1988(2) CHN 139.
14. I have heard the respective counsel for the parties at length.
15. Several contentions and counter contentions have been raised by the respective parties as noted above. The counsel for respective parties had made submissions in threadbare. The arguments that were made, I must admit was erudite. More erudite the argument, more the confusion.
16. In the present case, it would be proper to go step by step. In case on one question the case can be decided, it would not be necessary to deal with the other questions. Though, so many points were raised, but the Court may not be called upon, to decide all the points argued. The Court has to look into the substance of the challenges thrown before it. It has to confine Itself only to the contentious Issue that would determine the rights of the parties in respect of the particular reliefs asked for, within the compass of the question, the Court is now called upon to decide.
17. I, therefore, propose, first to consider the application for execution being G.A. No. 3750 of 2000 and G.A. No.3 of 2001 for setting aside the order amending the decree and for dismissal of the execution. Mr. Mitra has supported this application and had contended that it is executable and it should be executed by this Court, as prayed for at this stage. On the other hand, all the counsel for the respective parties opposing execution, in one voice, contended that the execution is not maintainable against the intervenors including the plaintiff in C.S. No. 171 of 2001 being I.P.M. Industries Ltd. and Others (IPM for short), Therefore, let us examine as to whether the decree, as it stands, is executable and can be executed against the intervenors, being IPM and others or not.
18. Executability of the decree:
18.1. In the decree that was originally passed, IPM and others were not parties. The decree that was passed, was in relation to the land only without the mention of the building that was constructed thereon. It was obtained against United Investment Corporation (UIC for short) by Mehta Suraya Pvt. Ltd (Mehta Suraya for short). UIC is not obstructing/opposing the execution. After the decree was amended, the building was also included in the decree. After such amendment the decree is being sought to be executed against the intervenors IPM and others.
18.2. A question has been raised as to the right of the intervenors to resist the execution. Inasmuch as the decree against the lessee/ tenant is binding on the sub-lessee/tenants. The proposition is well settled. But this question has to be examined having regard to the peculiar facts and circumstances of the present case. Admittedly the decree related only to the land and was obtained against UIC alone, being the lessee of the land. Admittedly, the intervenors IPM and others were neither parties to the suit, nor to the execution, until the amendment sought for was allowed. The other contention that was raised by Mr. Mitra is that the executing Court cannot go behind the decree and question the validity thereof. He had also cited various decisions with regard thereto.
18.3. It is a well settled proposition that the executing Court cannot go behind the decree. The scope of enquiry by the executing Court, while executing the decree, when execution is resisted, is limited to the extent as has already been settled through various decisions, it cannot go behind the decree. But it can examine whether the decree is executable against the persons against whom it is sought to be executed. In other words, whether the decree is binding upon the persons sought to be executed against.
18.4. A decree can be executed only when it is executable. Unless a decree is executable the Court cannot proceed to execute the decree. In other words, Court cannot assume jurisdiction to execute the decree, which is otherwise inexecutable. There are certain exceptions to the principle that the Executing Court cannot go behind the decree. One such exception is that the decree sought to be executed is a nullity. If the decree is a nullity, then the same is inexecutable. As soon the decree is a nullity, in the eye of law, the decree is non est. Such a decree cannot be enforced. Therefore, there is lack of initial Jurisdiction of the executing Court to execute such inexecutable decree, which is a nullity. It is incumbent on every Court, before assuming Jurisdiction, to find out as to whether it has Jurisdiction to deal with the matter. If the question hits at the root of Jurisdiction, the Court cannot assume jurisdiction. In other words, the Court, being without Jurisdiction, cannot proceed with the same. Even if an inexecutable decree were executed in the absence of jurisdiction, such execution would be without jurisdiction. Execution of a decree, which is a nullity, is an exercise in void. As such the execution itself would be nullity. The Court cannot exercise its jurisdiction in void. Therefore, it is the responsibility of the Court to examine, whether it has Jurisdiction to execute the decree, by examining the executability of the decree. In other words, to examine as to whether decree is a nullity and the Court would be exercising its jurisdiction in futility or is exercise its Jurisdiction in void. In support of the above proposition reference may be made to series or catena of decision on this question. We may not multiply the references. We may simply refer to the decision in the case of Official Trustees of W. B. v. Sachindra Nath Chatterjee and Urban Improvement Trust, Jodhpur v. Gokul Narayan .
18.5. Admittedly, the intervenors IPM and others are sub-lessees/ tenants under UIC, against whom the decree was obtained and is being sought to be executed. Thus, ordinarily the decree would be binding on the sub-lessees/tenants, unless they are able to set up a right, independent of the judgment-Debtors, in respect of the subject matter involved in the decree.
18.6. The decree originally was in respect of the land against the lessee UIC. Admittedly, a building was constructed on the land. This building was not the subject matter of the decree, until it was amended. Admittedly, the building was not included either in the plaint or in the application for decree on admission. Therefore, the decree as it stood prior to amendment could not be executed in respect of the building, which was neither the subject matter of the suit nor in the application for decree on admission. As such the resultant decree could not be executed in respect of the building. No leave appears to have been asked for under Order 2 Rule 2 of the Code of Civil Procedure (CPC for short), in respect of the building. Therefore, the decree as it stood was final and could be executed only against the land and against the lessee. It could not have been executed in respect of the building constructed thereon, nor it could be executed against IPM and others who were not sub-lessee/tenant of the land, which was the subject matter of the suit. The Intervenors IPM and others were sub-lessees/tenants in respect of the building, which comprise of the land and the building.
19. Collusion:
19.1. A decree for eviction against the lessee/tenant is binding on the sub-lessee/tenant. But there are some exceptions to it. One such exception is that the sub-tenant/lessee has a right independent of the lessee/tenant. In case the sub-lessee/tenant is able to prove collusion then the sub-lessee/ tenant is said to have right independent of the lessee/tenant. In this case collusion is alleged in this application as well as in the suit. The question can be properly and comprehensively dealt with in the suit. It would not be wise to decide the said question at this stage. But for a decision on these applications, a prima facie case is required to be found out. Apparently it appears that the lease rent payable for the land is meager. The lessee was permitted to raise construction and to sub-let the same. UIC constructed the building on the land. It is, admittedly, a ten storeyed building. The cost of construction of such building must be substantial. UIC had sub-let the building to various tenants and has been receiving rent. The income appears to be substantial. There cannot be any earthly reason to surrender the lease or to quit. It would be a normal presumptions having regard to the allegations made in the plaint, the face value whereof is to be taken into account, that there is every likelihood of existence of collusion between the parties. It appears to be confirmed by reason of the fact that the judgment-debtors did not oppose the amendment of the plaint, application for decree on admission and the decree by the trial Court, after the decree had merged with that of the appeal Court, and that the decree holder has not opposed to the continuation of collection of rent by the Judgment-Debtor. Thus, there appears to be a very strong prima facie case of collusion between the lessor and the lessee.
19.2. Thus, prima facie the decree as it stood is inexecutable in respect of the building as against the intervenors IPM and others though sub-lessee/ tenants, despite the principle that the decree against the lessee is binding on sub-lessee/tenants.
19.3. Collusion: Cannot be gone into now:
The ground that the decree was collusive or otherwise, cannot be gone into in the present application being G.A. No. 3750 of 2000. Such question is the subject matter of C.S. No.171 of 2001. Therefore, I refrain from entering Into the said question at this stage. The subject matter as to whether the sub-lessee/tenants would be bound by the decree, passed against the lessee, does also not require to be gone into at this stage. It is kept open to be decided in the execution of the unamended decree itself, subject to any order that might have been or be passed in C.S. No. 171 of 2001. The question, whether it was case of surrender or It was a case of notice to quit, can also not to be gone Into at this stage, with the scope and ambit In the present application. This is also a subject matter, which is to be finally determined in the suit itself. Therefore, I need not go into this question at this stage.
19.4 So far as the question of collusion or the question that the notice was a notice to quit or to surrender, are all matters, which could be considered before the decree is passed. The executing Court cannot go behind the decree. As such it is not open to be decided by this Court on the basis of G.A. No.3 of 2001, made in the execution proceedings. Therefore, the executability of that decree, as it stood prior to its amendment, cannot be questioned in these proceedings. The decree, as it stood prior to its amendment, appears to be executable and can be executed as against the Judgment Debtor.
20. Amended decree: Executability:
20.1. Now, it is to be examined whether the decree as amended, is executable, having regard to the principle enunciated hereinbefore. In case It is found that the decree as amended, is valid and is not a nullity nor void, then it is surely executable in respect of the building as against the intervenors IPM and others. Therefore, it is to be examined whether this Court can assume jurisdiction and proceed to execute the decree as amended. The executing Court, surely, cannot question the validity of the decree, unless it is shown that the decree is a nullity or void. The Court is bound to execute the decree in respect of the subject matter as against the persons, against whom it is sought to be executed, unless it is shown that the subject matter cannot be covered within the decree and that the same cannot be executed against the persons, against whom it is sought to be executed.
20.2. In order to prove this point, that the decree is executable and is valid, on behalf of the decree holder, and that it is inexecutable and void and a nullity, on behalf of the intervenors IPM and others; the validity of the amendment has been supported and assailed respectively by the respective counsel for the respective parties.
20.3. By orders dated 17th August 2000 and 22nd August 2000 the amendments were allowed, on the basis of an application for amendment made on 5th August 2000. The trial Court had passed the decree on 11th October, 1999. The decree was affirmed by the appeal Court on 3rd January, 2000. The special leave petition thereout was dismissed on 8th May, 2000. The decree was signed on 12th July, 2000 and was filed.
21. Correction /Amendment of decree:
Order 20 Rule 3 CPC provides that the judgment is to be signed by the Judge, and once signed, it shall not be altered or added to afterwards, save as provided by Section 152 or on review. Once the Court pronounces the decree and signs it, the Court becomes functus officio, except within the scope and ambit of Section 152 or under Section 114 read with Order 47 CPC. In 1976, Section 153A was Inserted in CPC. It is an extension of the power under Section 152, to be exercised by the trial Court in certain cases, even though the decree is that of the Appeal Court. Section 153A has not introduced any new power. It only empowers the trial Court to exercise the power under Section 152, in respect of a decree that has been affirmed or modified by the Appeal Court, In certain cases.
22. Section 153 : Order 6 Rule 17 CPC :
In the present case, the orders dated 17th August, 2000 and 22nd August, 2000 purported to amend the plaint in the suit as well as the application for decree on admission and the consequential amendment in the decree, by incorporating the building, which was not subject matter of the suit and the decree, till the amendment was allowed. The power under Section 153 is available to the Court during the pendency of the suit, viz. until the Court becomes functus officio. Therefore, the Court could not exercise Section 153 read with Order 6 Rule 17, in this case, in view of Order 20 Rule 3 CPC. The only jurisdiction available to the Court, is that of under Section 152 read with Section 153A CPC. It is not a case of review, and as such we may not examine the said aspect now. The amendment of the plaint and the amendment of the application for decree on admission, could not be undertaken by the Court in exercise of Jurisdiction under Section 153 read with Order 6 Rule 17 CPC.
23. Section 151 CPC:
23.1 Mr. Mitra had contended, that it could be done, if circumstances warrant and justice demands, under Section 151 CPC. This proposition has to be examined having regard to the facts and circumstances of the case. In support of his contention, Mr. Mitra had relied on the decision Suvan Buksh v. Birendra Kishore Manlkya AIR 1915 Calcutta 586. The said decision does not help us having regard to the facts of the present case, where plaint and the application for decree on admissions are also sought to be amended. Section 151 is a jurisdiction, inherent in the Court, to pass appropriate orders, for the ends of justice or for preventing abuse of the process of the Court. In the present case the orders dated 17th August, 2000 and 22nd August, 2000 were not passed for preventing any abuse of the process of the Court. It is alleged to have been exercised for the ends of justice.
23.2 It is an admitted proposition that Section 151 is to be resorted to, when there is no express provision provided in CPC. Section 153 provides power to make necessary amendments in the pleadings read with Order 6 Rule 17 CPC. This can be exercised till the Court becomes functus officio. Order ,20 Rule 3 prescribes that a decree cannot be altered or added to after it is signed, except under Section 152. When the Code provides a specific provision barring Courts jurisdiction, exercising jurisdiction under Section 151 CPC, it cannot circumvent the same. Section 151 cannot be used to contradict the procedure laid down in CPC itself. It is only when no specific provision is available under CPC, then Section 151 can be availed of. But when something is prohibited by CPC, exercising Section 151, the same cannot be circumvented.
24. Ends of justice:
Be that as it may, even then it has to be exercised for the ends of justice. Can It be said, that the plaint and the application for decree on admission were amended for the ends of justicel The answer is simply in the negative. Inasmuch as, even if it is for the ends of justice, such ends of justice is not only in favour of the decree-holder but also the Judgment-debtor. But by reason of such exercise, third parties, who were no otherwise bound by the decree, cannot be made to be bound, particularly, when the relief that is now being sought to be asked for, could have been included In the plaint or could have been kept open by obtaining leave under Order 2 Rule 2 CPC. Such amendment will not only contradict Order 20 Rule 3 CPC, but also will contradict Order 2 Rule 2 thereof. What the plaintiff could not avail of under Order 2 Rule 2 CPC, is sought to be achieved through Section 152 or under Section 151, which is wholly impermissible. Once the decree is passed and is signed, the Court becomes functus officio. It can no more exercise its power under Section 153 read with Order 6 Rule 17 CPC. If it cannot do so by reason of express provision available for such purpose, it cannot do it under Section 151 CPC. It would be simply altering a decree, which is subject to Section 152 CPC. The Court having be come functus officio can no more go behind the decree. As the executing Court cannot go behind the decree, the Court that passed the decree, can also not go behind the decree, except as provided under Section 152 CPC. Section 151 cannot be utilized or exercised for any purposes, which are not permissible, or in other . words which are prohibited under Order 20 Rule 3 or Order 2 Rule 2 CPC.
25. Could trial Court assume jurisdiction to amend:
25.1. At the same time, their being no provision provided similar to that of Section 153A in relation to Section 153, the trial Court cannot assume jurisdiction to amend the pleadings after the decree is passed or the appeal against its judgment is dismissed and the special Leave Petition was also dismissed. Once the proceeding is concluded before the trial Court and it receives the seal of the Appeal Court, it is no more open to the trial Court, to assume jurisdiction under Section 151, in respect of a matter in relation to which, the trial Court as well as the Appeal Court, had become functus officio. While exercising jurisdiction under Section 152 read with Section 153A. the Court cannot assume Jurisdiction under Section 151, in order to amend the plaint or the application for decree on admission. The purpose of providing the provision of Order 2 Rule 2, Section 152 read with Section 153A CPC are meant for bringing finality to a decision of the Court.
25.2. That apart the Issues between the parties have once been decided finally, it cannot be reopened by reason of the principle provided in Section 11 CPC. The amendment that was allowed was in effect a re-trial of the whole case without the decree and judgment being set aside, in a case where it stood affirmed by the Appeal Court. In the absence of any provision provided in CPC, by reason of Section 151, the trial Court cannot assume jurisdiction to amend the plaint and the application for decree on admission, after it had become functas officio, and that too, in a case where the Judgment stood affirmed by the Appeal Court.
25.3. An order passed by the Court in exercise of a jurisdiction, which it does not possess, is a nullity and void. It is open to the executing Court to examine whether the Court had purported to assume Jurisdiction when it had none, and the resultant order is a nullity or void, and is passed by the Court lacking initial jurisdiction. In that event the executing Court, if proceeds to execute such a decree, would be assuming jurisdiction, which it does not posses.
25.4. Admittedly unless the plaint and the decree on admission is amended, the decree could not be amended. If such amendment cannot be made and the order allowing such amendment is a nullity or void, then the consequent amendment under Section 152 would also be rendered void and a nullity. Unless the property is within the subject matter of suit, the same cannot be incorporated in the decree. The building, having not been a subject matter of the suit, could not be incorporated in the decree.
26. Section 152 CPC : Scope and ambit :
26.1 Section 152 postulates correction of the decree in relation to errors arising from any accident slip or omissiom or any clerical or arithmetical mistake in the Judgment or the decree or the order, as the case may be. The amendment that has been carried out is neither clerical nor arithmetical mistake nor accidental slip or omission in the decree, as discussed above. Therefore Section 152 cannot be attracted. Even if the jurisdiction of the trial Court, to make such correction under Section 152, is available after the decree is affirmed by the Appellate Court by reason of Section 153A, it is confined only to the scope and ambit within the confines of Section 152.
26.2. In Dwarka Das v. State of M.P and Anr. , it was held that Section 152 CPC provides for correction of clerical or arithmetical mistake in judgments decree or orders or errors arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistake by the Court of its ministerial action and does not contemplate of passing effective Judicial orders on the judgment, decree or order. It is a settled proposition of law, that after the passing of the judgment, decree or order the Court or Tribunal becomes functus officio and thus it is not entitled to vary the terms of the judgment, decrees and orders passed. The power contemplated, are of correcting only accidental omission or mistakes and not all omissions and mistakes, which might have been committed by the Court, while passing the judgment, decree or order. It implies that the section cannot be pressed into service to correct an omission, which is intentional, how far erroneous that may be. It has been noticed, that sometimes the Courts have been liberally construing and applying the provinces of Section 151 and 152 of the CPC, even after passing of effective orders in the lis, which ceased to be pending before them. No Court can, under the cover of the aforesaid section modify, alter or add to the terms of its original Judgment, decree or order. In the present case, the amendment that has been incorporated, relates to the amendment of the plaint and the application for decree on admission, without which, the decree could not be amended. Such a correction cannot be brought about, even by way of review. Such a correction is not a correction within the scope and ambit of Section 152, not being an accidental slip or omission or a clerical or arithmetical mistake by the Court. The mistake, error or omission in a judgment or decree, which are subject matter of correction under Section 152 read with Section 151 are mistakes, errors and omissions of the Court. This provision does not contemplate correction of errors, omissions or mistakes made by a party to the lis viz: in the pleadings etc.
27. Amendment and correction ; Distinction There is a distinction between a correction and an amendment. Section 152 contemplates of correction and not amendment. Amendment is contemplated in Section 153 read with Order 6 Rule 17. When sought for by a party, it is amendment and can be availed of only during the period till the lis remains pending. Once the judgment is delivered, it is only correction, which can be brought about and which, is permitted under Section 152. The provision for amendment does not apply in such a case. When the Court makes it, it is a correction of its own mistake, error or omission and that too, within the meaning of Section 152 namely, the clerical or arithmetical mistake or accidental slip or omission. These are the categories of matters, which are subject to Section 152 CPC. Section 152 CPC cannot be stretched beyond that. The Court cannot take aid of Section 151 to stretch it beyond what is contemplated in Section 152, while correcting a decree. What cannot be brought about by way of resorting to Section 152 or even by way of review, cannot be brought about by Section 151 CPC. It would be stretching the law too far. Section 151 is an inherent Jurisdiction, which resides in the Court itself. But such residence does not extend to confer Jurisdiction, which is not available to such residence. It can be exercised only within the Jurisdiction available to it. It cannot confer or create jurisdiction, which is altogether absent.
28. Lack of jurisdiction :
28.1. Budhta Swain v. Gopi Nath Dev was cited by Mr. Kapoor. This was sought to be distinguished by Mr. Mitra. In the said decision the apex Court had observed that there is a distinction between lack of jurisdiction, which strikes at the root of exercise of Jurisdiction and vitiates the proceedings rendering the same and the order passed therein a nullity, and error in exercise of jurisdiction, which does not vitiate the legality and validity of the proceedings and the order passed therein unless set aside in the manner known to law laying a challenge subject to the law of limitation. Since, as observed earlier, in the present case, it is not an error in exercise of jurisdiction, it is a case of complete lack of Jurisdiction.
28.2. In Hiralal Patni v. Kalinath referred to in the decision in Budhta Swatn above, It was held that the validity of a decree can be challenged, in execution proceedings, only on the ground that the Court, which passed the decree, was lacking in inherent jurisdiction. In essence, it could not have assume jurisdiction, because the subject matter was wholly foreign to its jurisdiction or some such other ground, which could have the effect of rendering the Court, entirely lacking in jurisdiction in respect of the subject matter. This decision helps the view I have taken in this case. The attempt to distinguish the said decision by Mr. Mitra, does not seem to be sound. The ratio decided therein, is fully attracted in the present case. Mr. Mitra had tried to make out a case, that the trial Court was well within its jurisdiction to carry out the amendment, in exercise of power under Section 151 and 152 read with Section 153A CPC for ends of Justice. But such contention, as discussed hereinbefore, cannot be sustained, in view of the facts and circumstances of the present case.
29. When Section 153A can be resorted to:
29.1. The Jurisdiction under Section 153A conferred on the trial Court, is available only when the appeal is dismissed by the appeal Court under Order 41 Rule 11 and not otherwise. So far as the High Court is concerned, in the appellate side rules, in Chapter V Rule 17(a), it is provided that an appeal from original decree is not required to be set down for hearing under Order 41 Rule 11. The Stamp Reporter admits it, if it is found in Order, as soon it is placed before the stamp Reporter, after its presentation. Therefore, the disposal of the appeal in the present case, is not a disposal under Order 41 Rule 11, and as such Section 153A is not attracted. Inasmuch as, Section 153A is attracted only in a case where the appeal is dismissed under Order 41 Rule 11 CPC. Unless the appeal is dismissed under Order 41 Rule 11 CPC, the trial Court cannot assume jurisdiction to correct the decree. Admittedly, in the present case the appeal was dismissed after hearing both the parties. Such dismissal in respect of an appeal from original decree, by no stretch of imagination, can be said to be a dismissal under Order 41 Rule 11 CPC. Order 41 Rule 11 CPC postulates admission of an appeal without hearing the respondent. The respondent has no right of hearing in course of hearing of Order 41 Rule 11 CPC. It provides that such hearing is to be made without serving notice on the respondent or his pleader. Therefore, if any hearing is given to the respondent at the time of dismissal of the appeal, it is not a dismissal within the meaning of Order 41 Rule 11 CPC, as is contemplated in Section 153A. In Ram Bharosey Lal v. Rameshwar Dayal Chakkiwala , it was held that even if the decree merges in that of the Superior Court, Section 153A enables the trial Court or the Court of first instance to correct an error in the decree, without divesting the Superior Court of its jurisdiction to effect such correction. In the said case the question related to a merger of the trial Courts decree in that of the Superior Court on account of dismissal of the appeal under Order 41 Rule 11 CPC. Inasmuch as in the said case the appeal was dismissed under Order 41 Rule 11 CPC, which fact is distinguishable in the present case.
29.2. In Smt. Chandra Kala Devt v. Central Bank of India, it was held that after a decree is appealed from and a final order is made by the Appellate Court, the lower Court ceases to have jurisdiction over the matter. The decree in effect becomes the decree of the Appellate Court and the Jurisdiction to amend the decree is in the Appellate Court, not in the Court below. The lower Court becomes functus officio. Mr. Mitra contended that this decision was rendered before Section 153A was inserted in CPC. But such a contention is out in place in view of the fact that Section 153A CPC applies in a case where the appeal is dismissed under Order 41 Rule 11 CPC, which is not a case in the present one, and as such the said decision still holds good in respect of the matters where appeal was not dismissed under Order 41 Rule 11 CPC. By reason of such amendment the said ratio has become subject to the provisions of Section 153A.
29.3. In Karma and Others v. Narayani and Others it was held that except in cases, to which Section 153A CPC applies, where there has been an appeal, the decree under appeal merges in the decree on appeal, and it is only the Appellate Court that could correct or amend the decree under Section 152 CPC. As soon appeal is disposed of on merits, the decree of the trial Court merges in that of the appeal Court. Section 153A does not apply to appeals dismissed otherwise than under Order 41 Rule 11. This decision supports the view 1 have taken.
29.4. In Gojer Brothers (P) Ltd. v. Shri Ratan Lal Singh, it was held that where the decree of the trial Court is carried out in appeal and the appeal Court disposed of the appeal after a contested hearing, the decree that is to be executed is the decree of the Appellate Court, since it is a rule that the decree of the trial Court merges in the decree of appeal Court and as such the decree of the appellate Court cannot be corrected by the trial Court.
29.5. This judgment, according to Mr. Mitra, having been rendered before the 1976 amendment inserting Section 153A in CPC, has no manner of application in the present case. Mr. Mitra's contention may have bearing in respect of appeals dismissed under Order 41 Rule 11 CPC alone, but not otherwise.
30. Section 153A: Clause 15 of Letters Patent : Original Side Rules 3O.1. But then, it is to be borne in mind, that the appeal, in the present case, was an appeal under Clause 15 of the Letters Patent. The suit was filed in the Original Side. It was so decreed in exercise of jurisdiction of this Court in the Original Side, governed by Original Side Rules. Thus, there is no scope for dismissal of the appeal under Order 41 Rule 11. Such appeals, in the Original Side under Clause, 15 are governed by Chapter 31 of the Original Side Rules. The said Rules in chapter 31 in Rule 2 requires presentation of the memorandum of appeal. Upon such presentation under Rule 3 the Registrar accepts and file the same, if it is in order. In case it is not in order, the Registrar shall endorse the date of presentation and return the same to the party or who tendered it. Then such memorandum is to be presented before the Appellate Court for admission. Such an admission is quite different from the admission contemplated under Order 41 Rule 11. On the other hand such admission is an admission similar to the meaning of Rule 17(a) of Chapter V of the Appellate Side Rules. When it is so presented before the Appellate Court, it may admit or reject with or without notice to the respondent. In the present case the Registrar accepted the appeal and it was not a case under Rule 5 of Chapter 31. In any event, the admission, as contemplated in Rules 3, 4 and 5 of Chapter 31, are related to the question as to whether the memorandum is duly stamped and complies with Rules 2 and 5 and is drawn up in form 1 in the manner prescribed under Order 41 Rule 1 CPC and accompanied by a copy of the decree appealed from. The scope and ambit of hearing under Rule 5 is confined only to the finding with regard to the compliance contemplated in Rule 3 and not beyond. Such hearing can be made with or without notice. Admittedly the hearing, on which the appeal was dismissed, was not a hearing contemplated under Rule 5 Chapter 31 of the Original Side Rules. Rule 8 of Chapter 31 contemplates issue of a notice on the respondents after admission. In the present case after admission such notices were issued and the appeal was disposed of upon notice to the respondent and after hearing them. Therefore, it was not a dismissal of the appeal within the meaning of Order 41 of Rule 11 CPC, as such the provision of correction under Section 153A cannot be attracted.
30.2. In the present case the appeal was one under Clause 15 of the letters patent. In the Original Side Rules, Chapter 31 deals with appeals under Clause 15 of the Letter Patent. Under Rule 7 such an appeal is to be registered by the officer to whom it is presented. Such an appeal is not subject to admission under Order 41 of Rule 11 CPC in view of the fact that CPC does not apply, as observed hereinbefore. Rule 8 prescribes for service of notice after such registration. Therefore, a hearing of such appeal is not a hearing within the meaning of Order 41 Rule 11 CPC. Sub Rule 4 of Rule 11 of Order 41 requires the Appellate Court to deliver a judgment regarding the grounds in brief for dismissal of the appeal under Order 41 Rule 11, except the High Court. Therefore, the reason given by the High Court in the appeal, in the present case, cannot be brought within the purview of Rule 11 of Order 41 CPC.
31. Order 20 Rule 3 CPC : Chapter XVI Original Side Rules 31.1 Order 20 Rule 3 CPC provides that the Judgment is to be dated and signed by the Judge in open Court at the time of pronouncing it, and once signed there cannot be any addition or alteration except as provided in Section 152 or on review. Thus, if Order 20 Rule 3 is attracted, then relief asked for in the application for amendment could not be granted, since the same were not matters covered by Section 152, But in view of specific provision provided in the Original Side Rules, that are different from those of CPC, the question acquires a different dimension. Inasmuch as Rule 10 Chapter XVI of the Original Side Rules requires every decree to be sealed after it is signed by the Judge. This means that under Order 20 Rule 3 CPC the Judgment is perfected as soon It is signed. But under the Original Side Rules that stage is arrived after signature when it is sealed. The stage, after which the judgment cannot be altered or added to under the CPC, is the signing of the judgment by the Judge under Order 20 Rule 3. Whereas under the Original Side Rules in view of Chapter XVI Rule 10 that stage is arrived after the order is signed and sealed.
31.2. Section 122 CPC empowers High Courts to make rules relating to their own procedure. But the CPC did not stop at that. Specific provision is provided in Section 129 with regard to its original Jurisdiction. But only restriction that has been provided, is that such rules shall not be inconsistent with the Letter Patent or order or other law establishing it. There is noting in Section 129, which prevents the High Court from making rules regulating its procedure in the exercise of its Original Civil Jurisdiction, inconsistent with the CPC. Inasmuch as the restriction, with regard to inconsistency, has been confined to the Letter Patent or the law establishing the High Court. It has not included CPC. Therefore, Inconsistency with CPC does not affect the rules. It is inconsistency with Letter Patent that matters, however, inconsistency with Letter Patent, is not contended in this case. Therefore, Rule 3 Order 20 CPC has to yield to Rule 10 chapter XVI of the Original Side Rules.
31.3. Clause 37 of the Letter Patent empowers the High Court to make Rules and Orders for the purpose of regulating all proceedings in civil cases brought before it. But while making such rules the High Court shall be guided, as far as possible, by the provision of CPC. Thus, there is nothing even in clause 37 of Letter Patent, which affects a rule framed under Clause 37 of Letter Patent, in case of inconsistency with any rule of the CPC. It is only a guideline that was intended to be indicated, and that too, as far as possible, Section 129 CPC is to be read with clause 37 Letter Patent, in order to interpret the inconsistency Clause provided in Section 129 CPC in relation to Letter Patent. Clause 37 does not say that Rules framed thereunder shall be consistent with CPC neither it provides the consequences of inconsistency. It only lays down a guideline to follow CPC, as far as possible, therefore, in case of any inconsistency the rule of CPC is to yield, and those of original side is to prevail.
31.4 In Umesh v. Kunjalal 57 C 676 it was held that there is nothing in the code to say that the Original Side Rules must not be inconsistent with the Code. But they must not be inconsistent with the Letters Patent establishing the High Court. In Gowal v. Luchmi 57 C 106 it was held that when High Court makes Rule not inconsistent with Letter Patent, the Rules in the CPC does not apply. In Virjiban v. Bireswar 48 C 69 it was held that when there is no separate rule provided in the Original Side rules by the High Court, the rules of CPC applies. The Bombay High Court in Behram v. Haji 37 B 572 had taken the same view. The Madras High Court in Kamalamma v. Sayed Ismail , Bombay High Court in Hussain v. Mariambai had taken the view that when the Original Side Rules and the Rules in the CPC on the same subject are Inconsistent, the Rules of the Original Side will prevail.
31.5. The provision contained in Rule 10 Chapter XVI of the Original Side Rules deals with drawing up, signing and sealing of the decree. Once the Judge signs it, it cannot be altered. In the present case the decree has since signed and sealed. As such it is not more open to be altered or amended.
31.6. Rule 3 of Chapter XL of the said Rules prescribes that where no other provision is made by the Code (CPC) or by the said Rules, the practice and procedure being followed presently shall remain in force. The simple meaning of this provision may be summarized thus: (1) where there are provisions provided in these Rules the same will prevail; (2) where there is no provision provided in these rules the provisions as provided in CPC shall be followed (3) where both are absent the present practice and procedure will be followed. As already discussed, if there is any conflict between the provisions of these Rules and the CPC, these Rules will prevail. If there is no provision provided in the Rule then the provisions as provided in CPC will apply; otherwise the practice and procedure will be followed. The Original Side Rules does not provide any provision similar to that or Order 20 Rule 3 CPC. Therefore, in such a case Order 20 rules 3 CPC will apply.
31.7. Order 20 Rule 3 is applicable in respect of a Judgment and Decree/ Order or Dictated Order passed in the Original Side. It can be interpreted to mean that Rule 3 Order 20 would become applicable only after an Order etc. passed in the Original Side is perfected. In other words that stage will arrive after the decree is drawn up, signed and sealed as provided in Rule 10 Chapter XVI by the respective Court. In this regard I am supported by the ratio in the decision in the case of Steel & Allied Products Ltd, v. Gerbueder Bholar & Co., 75 CWN 416, taking the same view relying upon various other decisions, particularly, the decision in the case of Sarupchand Humum Chand v. Madhoram Raghumall 28 CWN 755, which lays down that the order until perfected can be reconsidered by the Judge. Following the above decisions I have taken the same view in Shyam Sundar Agarwal v. Union of India, G.A. No. 4389 of 2000 (arising out of W.P. No. 2505 of 2000) disposed of on January 11, 2001.
31.8. In any event the question of alteration of the order or the decree can be made only by the Court itself. The trial Court has no Jurisdiction to alter the order or Decree passed by the Appellate Court, as discussed hereinbefore. In the absence of any specific provision provided in the Original Side Rule, the provisions of Section 152 read with Section 153A CPC is applicable to the conditions, as contemplated in the said provisions.
32. Fraud/Nullity : Recalling of order 32.1. In Indian Bank v. Satyam Fibres , reference was made to Smith v. East Elloe Rural District Council 1956 A C 736 of the House of Lords, where it was held that the effect of fraud would normally be to vitiate any Act or Order referring to Lagorus Estate Ltd, v. Bisley (1956) 1 QB 702 at 712 quoting Lord Denning:
"No judgment of a Court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." In the said decision in Indian Bank (supra) it was held that "The Judiciary in India also possesses inherent power specially under Section 151 CPC to recall its Judgment or order if it is obtained by fraud on Court. In the case of fraud on a party to the suit or proceeding, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers, which are resident in all Courts, especially, of superior Jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of Courts' business.
Since fraud affects the solemnity, regularity and orderlines of the proceedings and also abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practiced upon that Court. Similarly, where the Court is mislead by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order".
32.2. In the said decision references were made to various decisions of different High Courts, as it appears from paragraph 23 of the said decisions, to support the view taken by the apex Court.
32.3. In S.P. Chengalvaraya Naidu v. N. Jagannath , the apex Court has held:
"Fraud avoids all Judicial acts ecclesiastical or temporal, observed Chief Justice Edward Coke of England about three centuries ago. It is a settled proposition of law that a Judgment or decree obtained by playing fraud on the Court is a nullity and non est in the eyes of law. Such a judgment/ decree by the First Court or by the Highest Court has to be treated as a nullity by every Court, whether superior or inferion. It can be challenged in any Court even in collateral proceedings.
We have no hesitation to state that a person, whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
Non-production and even non-mentioning of the release deed at the trial by a party tantamount to playing fraud on the Court. A litigant, who approaches the Court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the Court as well as the opposite party."
32.4. In Urban Improvement Trust v. Gokul Narayan , it was held that if the Court grants certain benefits in exercise of its jurisdiction, which the Court does not possess, the decree is a nullity. A question of nullity can be set up at any stage, including execution. If so set up the decree can be set aside.
32.5. In the present case, the building was not mentioned. That a subsequent deed was executed permitting sub-lease, was also not mentioned. The existence of sub-lessee/tenants was also not mentioned. Thus, prima facie it appears that the grounds on which fraud can be presumed, are in existence. Therefore, there exists a prima facie case for the purpose of grant of injunction and such other appropriate orders in the present case. The said decision also supports the view that the orders dated 17th August, 2000 and 22nd August, 2000 are also obtained by fraud without notices to the sub tenants/lessees for gaining advantage over them, and thus the said two orders can very well be avoided and has to be treated as a nullity, even by a collateral Court or by an inferior Court.
33. Thus, in this case the Court was wholly without jurisdiction in amending the decree and had committed a mistake in amending the plaint etc. and the Decree. As such the decree as amended is not executable. It is only the decree, as it stood prior to its amendment by the orders dated 17th August, 2000 and 22nd August, 2000, viz; which related to the land only, that is executable. The decree as amended incorporating the subject building, therefore, can very well be set aside in the present proceeding.
34. Prima facie case :
It was contended that the lease was for a fixed term outside the scope and ambit of the West Bengal Premises Tenancy Act and as such sub-lease is permissible, even without permission. But then there was a document, which permitted sub-lease. When the lease is surrendered the sub-tenant or sub-lessee becomes direct tenant. It is submitted by Mr. Bachawat that by reason of order dated 17th August, 2000 and 22nd August, 2000 the right of the sub-lessees, available under Section 115 of the T.P. Act, has since been affected. These are all questions, which are to be gone into the suit in C.S. No. 171 of 2001. The argument that no collusion exists, prima facie does not appear to be correct. There are some materials, which Indicates prima facie, that there might be collusion between the parties. One such factor that leads us to find prima fade case, is that the judgment debtor is still collecting the rents from the sub-lessee/tenants, by the decree holder has not taken any steps with regard thereto. It is also apparent from the fact that plaintiff Mehta Suraya knew fully well that the building had been constructed on the land. The building was not included in the suit until 17th August, 2000, and none of the sub-lessee/tenants were made parties. A prima facie case is also apparent from the fact that the lease being for fixed term and not being governed by the West Bengal Premises Tenancy Act. It is a case, which may be governed under Section 115 of the T.P. Act. The question whether it was a surrender or a notice to quit also might contribute to the existence to the prima facie case though it might be contended that it was not a surrender but a notice to quit, since the surrender operates in praesenti and not in future. Be that as it may, it is not necessary to go' into that question, which would then amount to prejudging the issues, at a stage when it is not necessary for the Court to decide the same.
35. Decisions cited:
35.1.Now, we may deal with respective cases cited by the respective parties, having regard to the facts and circumstances of the present case and the questions that this Court is called upon to deal with, at this stage.
35.2 In Suleman Hazi Ahmed Oomer v. Darub Shaw Piroj Shaw Dubash AIR 1939 Bombay 98, it was held that as soon there is a surrender of the head lease the sub-lessee becomes lessee under the lessor. This question is dependent on the question as to whether there was a surrender or it was a notice to quit. But this question is to be considered in C.S. No, 171 of 2001 itself. As such it is not necessary to go into the said question. In the decision in Sailendra Nath Bhattacharjee v. Bijan Lal Chakravorty AIR 1945 Calcutta 283, it was held that the sub-lessee would be bound by an eviction decree against the lessee, unless it is shown that the sub-lessee has a right Independent of the lessor. Prima facie, in the present case, it appears that the lease was in respect of the land with right to construct and sub-lease. A structure was constructed thereon. In respect thereof sub-lease was granted. But the decree was in respect of the land only, without the building. Therefore, in the present case, prima facie it appears, that the tenants have an independent right than of the lessee, so far as the decree vis-a-vis the building is concerned. As such this decision supports the issue so as to enable the Court to find a prima facie case. This decision also helps us in the case of fraud and collusion, which often lies deeper than what appears on the surface. Such fraud and collusion is to be properly proved and especially by facts and inference. It is not necessary that every artifice and contrivance resorted to, be completely unravelled or cleared up. What is necessary is to take the facts admitted and proved, as a whole and to draw a legitimate inference therefrom. This ratio supports us to conclude about the existence of the prima facie case with regard to fraud and collusion. In Jagadguru Guru Siddhaswami, Guru Gangadhar Swami Guru Sauirmath v. The Dakshina Maharashtra Digambar Jain Sabha, , does not help us in the present facts and circumstances of the case, In view of the fact that it deals with a matter, the facts of which are distinguishable from the one at hand.
35.3. In M.S. Ram Singh v. Vijaya Singh Surana , the question related to a surrender which ought to be in presenti, which is a question to be gone into in the suit itself and not at this stage. The decision in Smt. Shanti Devi v. Amal Kamar Banerjee AIR 1981 SC 1550, has no manner of application in the present case. In Benimadhab Merhotra -v. Howrah Flour Mills Ltd, , it was held that a suit for declaration that the decree for eviction Is collusive is maintainable, while considering the question of an application for addition of party, if a prima facie case is made out to the extent that the sub-lessee/tenant has independent right. The decision in Tirath Ram Gupta v. Gurubachan Singh does not help us much in the present case in view of the distinguishing facts mentioned therein. Mr. Bachawat has relied on the decision in Ranjtt Kumar Dutta v. Tapan Kumar Saha , to support his contention that the extension of lease, If accepted by the lessee, does not require to be supported by execution of a deed of lease. In the present context this decision is not necessary to be gone into. In Syed Ali Kaizer v. Mstt. Ayesha Begum cited by Mr. Bachawat also relates to the merit of the case and as such it may not be necessary for us to deal with the same at this stage. Mr. Bachawat had also relied on Pravin Chandra Liladhar v. Madan Mohan Jaidka and Ors. 1988 (2) CHN 139, which also deals with identical points, which is not necessary to be gone into at this stage. The decision in Anand Nivas (P) Ltd. v. Anandji Kalyanji Pedhi And Ors., , also relates to the merits of the case, which we are not called upon to go into at this stage of the proceedings. Mr. Bachawat had relied on the decision in Pravas Chandra Dalui v. Biswanath Banerjee . In the said decision it was held that the character of lease is to be found out from the deed itself. No amount of pleadings can change the character of the lease. This decision, at the present moment, can only help us to find out the existence of the prima facie case.
35.4. Mr. Mltra, on the other hand, relied on the decision in Jai Kissen Arora v. Ragha Nath Pradad Gupta . In the said case the plaintiff had obtained a decree in respect of a plot of land wherein the defendant was inducted as a tenant, who raised construction thereon. In the said structure the tenant had inducted a sub-tenant, who was not made party to the suit for eviction. The sub-tenant resisted the execution of the decree. Relying on this decision, Mr. Mitra sought to point out that the facts of the present case being similar to that of the case cited, IPM and others does not have any case at all. Mr. Kapoor, however, sought to distinguish the same. In the said decision it was laid down that though the sub-tenant in the structure was not a party to the suit, yet he could be evicted in execution of the decree under which the tenant is evictable, since the decree holder is entitled to vacant possession of the land. However, the evicted tenant has every right to remove the structure. If he does not do so, once he is evicted, he can no more deal with the same, since he is not entitled to enter into the land. The sub-tenant in the structure cannot resist the decree. But it may be noted that in the said decision it was observed that the sub-tenant could resist the execution if he has a right independent of the tenant or that the decree was obtained collusively. In C.S. No. 171 of 2001, these are the grounds that have been sought to be made out. However, the question may be finally determined at the hearing of C.S. No. 171 of 2001. At the present moment this decision helps us in arriving at a finding of the prima facie case.
35.5. Mr. Mltra had also relied on the decision in Rupchand Gupta v. Raghu Banshi (P) Ltd, . In the said decision it was held that even though the sub-lessee was not made a party in the suit for eviction, which was decreed ex parte, since the lessee did not contest, yet the sub-lessee in a suit challenging the decree as not binding upon him, having failed to establish collusion, the suit was rightly dismissed. According to Mr. Mitra the present case is also identical with that of the decision cited. Therefore, no prima facie could be said to have been established, particularly in view of the fact that in the present case the defendant contested the suit. As discussed hereinabove, I have found a prima facie case. A prima facie case is said to be made out as soon a triable issue is raised. Such an issue cannot be thrown out in limini. Whether ultimately the case would succeed or not, is not a criteria for making out of a prima facte case. Therefore, this decision may not be of help at this stage, though it would be open to be so decided at the trial of C.S. No. 171 of 2001.
35.6. Mr. Mitra and relied on the decision in Calcutta Credit Corporation Ltd. v. Happy Homes (P) Ltd., . In the said decision it was held that when a notice to quit is accepted by the landlord, even though such notice is defective, it determines the tenancy. In order to determine the tenancy, at the instance of the tenant, there need not by any actual delivery of possession before the tenancy is effectively determined. A person to whom such notice is given, is entitled to insist upon such notice. A subtenant is not entitled to any protection in such a case. In the present case the character of a notice is disputed. The notice is alleged to be defective. It was alleged to be a notice of surrender. All these questions relate to the merit of C.S, No. 171 of 2001. These are questions, which can finally be determined at the hearing of C.S. No. 171 of 2001. Any decision to that end would be prejudging the issues so far as suit No. 171 of 2001 is concerned. When looking at the question in connection with G.A. No. 3750 of 2001, it would be a case of going behind a decree, which is not permissible in the execution proceedings. Having regard to the observation made hereinbefore, it would not be necessary for us to deal with the said decision at this stage.
35.7. Mr. Kapoor had relied on Kamala Bai v. Mangilal Dulichand 1987 (4) SCC 588. In the said decision it was held that there could be an implied surrender. Whether this is a case of surrender or not, is a question to be gone into at the trial of C.S. No. 171 of 2001. Therefore, it is not necessary to deal with the same at the stage. This question cannot be gone into in the execution proceedings while dealing with G.A. No. 3750 of 2001.
36. Conclusion :
For all these reasons, in my view, the decree, as amended, is inexecutable. However, the decree, as It stood prior to its amendment, is executable as against the lessee, but not against the sub-lessee until the C.S No.171 of 2001 is disposed of and subject to the decision in that suit.
36.1. Injunction :
From the facts disclosed, it appears that prima facie case has since been made out, in respect of the question raised namely, fraud and collusion as well the other questions that are raised Inasmuch as, though expeditious disposal is not a factor hinting at fraud or collusion, yet it cannot be thrown away in limini. In view of the fact that there are certain ingredients, which indicates that there is a question raised, making out a prima facie case, which needs determination. While deciding the question in C.S. No. 171 of 2001, it will not be going behind a decree by the executing Court. Therefore, such question can be reopened in the suit. In this circumstances It is a case fit for an injunction restraining the plaintiff decree holder, in C.S. No. 171 of 2001 and the interveners thereto, as the case may be, till the disposal of C.S. No. 171 of 2001.
36.2. Receiver :
In T. No. 240 of 2001, a prayer for receiver has also been applied for. Since the rents are being accepted by the Judgment Debtor and the Plaintiff decree holder, in C.S. No. 183 of 1999, has not objected thereto by issuing any letter to any of the sub-lessee/tenants, therefore, until the disposal of C.S. No. 171 of 2001, the sub-lessee/tenants shall go on paying the rent to the Judgment debtor, until the decree holder asks for any other order. Such deposits will be without prejudice to the rights and contentions of all the parties. In case the plaintiff decree holder is agreeable to receive the rent directly from the sub-lessee/tenants, in that event, it may serve notice upon each of the sub-lessee/tenants and the Judgment debtor, with regard to its intention of receiving the rent directly. Upon such notice being issued, unless objected to by the judgment debtor, the sub lessee/tenants shall pay or deposit the rent with the plaintiff decree holder in C.S. No. 183 of 1999, for the months subsequent to the month, on which the notice was received by the sub-lessee/tenants, unless any communication is received by them from the Judgment debtor objecting to it. If any objection is raised, the parties shall be at liberty to obtain appropriate order from the Court. The payment or depositing of rent and receipt thereof by the respective parties, shall not, in any way, prejudice the rights and contentions of the respective parties in the pending execution and C.S. No. 171 of 2001.
36.3. Execution:
So far as G.A. No. 3 of 2001 is concerned, the execution that has since been levied incorporating the amendment carried out in terms of order dated 17th August, 2000 and 22nd August, 2000, cannot be proceeded with and as such is liable to be dismissed to the extent it seeks execution of the decree as amended by order dated 17th August, 2000 and 22nd August, 2000. It may, however, proceed, subject to injunction granted hereby, so far as it relates to the unamended decree, as it stood without the order dated 17th August, 2000 and 22nd August, 2000. Since the order dated 17th August, 2000 and 22nd August, 2000 were passed by a Court lacking initial Jurisdiction and the Order being nullity and void and the same having been so declared, it is not necessary to set aside the same. Inasmuch as an order, which is nullity or void is non est i.e., has no resistance in the eye of law. Therefore, the G.A. No. 3 of 2001 is allowed to that extent.
37. The order :
In the result the application No.3750 of 2000, G.A. No.3 of 2001 and T. No.240 of 2001 are allowed to the extent indicated below:-
(a) The execution shall be proceeded with only in respect of the unamended decree and shall not proceed in respect of the amendment made pursuant to the order dated 17th August, 2000 and 22nd August, 2000, which are hereby declared to have been passed without Jurisdiction and as such a nullity and void; and
(b) that such execution of the unamended decree, however, shall remain stayed as against the plaintiffs/intervenors in C.S. No. 171 of 2001 only, till the disposal of C.S. No. 171 of 2001; and
(c) It may proceed as against the Judgment debtor in C.S. No, 183 of 1999; and
(d) the plaintiff decree holder in C.S. No. 183 of 1999 is hereby restrained from executing the decree passed in C.S. No.183 of 1999, as against the plaintiff/intervenors in C.S. No. 171 of 2001, till disposal of C.S. No.171 of 2001; and
(e) the plaintiff/intervenors in C.S. No.171 of 2001 shall go on paying depositing the rent including the arrears, if any, to the judgment debtor, until the plaintiff decree holder in C.S. No. 183 of 1997. requires them to pay it to themselves (plaintiff decree holders in C.S No.183 of 1999), upon notice to them and to the judgment Debtor in C.S. No. 183 of 1999; and
(f) upon notice by the plaintiff/decree holder, in C.S. No.183 of 1999, to the sub-lessee/tenant, as in (e) the sub-lessee/tenants shall pay or deposit the rent for the months following the months of receipt of the notice until and subject to further orders of the Court, to the plaintiff/Decree holder in C.S. No.183 of 1999; and
(g) in case the Judgment debtor in the prior suit (C.S. No.183 of 1999) objects to such payment in (e) or (f) above, in that event the parties shall obtain appropriate order from the Court; and
(h) however, such payments and receipt in terms of (e) and (f) above, shall be without prejudice to the rights and contentions of the respective parties.
Xerox signed copy of the operative part of the Order be given to the parties on usual terms and the Registrar and all parties to act on such xerox signed copy of the operative part of the Order.