Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
BAHADUR SINGH & ANR.
Vs.
RESPONDENT:
MUNI SUBRAT DASS & ANR.
DATE OF JUDGMENT:
16/10/1968
BENCH:
ACT:
Code of Civil Procedure (Act 5 of 1908) s. 47--Decree in
terms of Arbitration Award passed--Objection to validity, if
can be raised. Indian Arbitration Act (10 of 1940) ss. 14,
17, 31, 32 and 33--Delhi and Ajmer Rent Control Act (38
of 1952) s. 13--Decree contravening s. 13, if can be
enforced.
HEADNOTE:
The tenants occupying the ground floor of a building set
up a workshop therein. According to the landlord’s son--M,
who resided in the first floor, the workshop was a nuisance
and caused him great annoyance. M and tenants agreed to
refer the dispute to arbitration. The landlord was not a
party to the agreement. The award directed that the tenants
would run workshop up to certain time and’ thereafter
remove the machinery. and on that day give. vacant
possession of the ground floor to the landlord. The award
was signed by the arbitrators, the tenants, and M, and it
was attested by the landlord. It was filed in Court under
s. 14 of the Arbitration Act. The tenants and M stated in
Court that they had no objections against the award. The
Court pronounced judgment according to the award and decree
followed. On the expiry of the date fixed for removing the,
machinery and for vacating the premises, M and the landlord
jointly applied for the execution of the decree. The tenants
objected under s. 47, Code of Civil Procedure to the
execution contending that (i) the award was beyond the,
scope of the reference and was invalid and the decree based
on the invalid award was void; (ii) the decree was passed in
contravention of the Delhi and Ajmer Rent Control Act, 1952
and was void; and (iii) the landlord could not execute the
decree.
HELD: (i) The award was filed in Court under s. 14 of
the Arbitration Act and on notice to the tenants and in
their presence a decree was passed according to the award
under s. 17. It was not open to the tenants then to take
the objection that the award was in excess of the authority
on the arbitrators or was otherwise invalid. Having regard
to the scheme of ss, 14 to 17 and 31 to 33 all questions
regarding the validity of the award had to be determined by
the Court in which the award was filed and by no other
Court. An award which is invalid on any ground can be set
aside under s. 30. After a decree is passed on the award
it is not open to the parties to the reference to
raise any objection as to the validity of the award. As
between them the decree conclusively determines that the
award is valid. Nor can the decree be pronounced to be a
nullity oh the ground that the award was invalid. [435 E--G]
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Rabindra Deb Manna v..Jogendra Deb Manna A.I.R. 1923
Cal. 410, and Shib Kristo Daw v. Sottish Chandra Dutt
(1912) 39 Cal. 822. approved.
(ii) The decree for delivery of possession to the
landlord was a nullitv and could not be enforced in
execution. Section 13(1) of the Delhi and Ajmer Rent
Control Act, 1952 prohibited the Court, from passing a
decree or order for recovery of possession of any premises
in
433
favour of a landlord against a tenant except in such a suit
or proceeding instituted by the landlord against the tenant
for recovery of possession on one of the grounds stated
therein, and unless the Court was satisfied that a ground of
eviction existed. The decree in the present case was on the
face of it one for recovery of possession of the premises in
favour of a landlord against a tenant. The Court passed the
decree according to an award under s. 17 of the Arbitration
Act, 1940 in a proceeding to which the landlord was not a
party without satisfying itself that a ground of eviction
existed. [436 C--E]
Peachey Property Corpn. vs.Robinson [1966] 2 All
E.R.981, applied.
(iii) The decree in so far as it directed the removal
of the machinery from the premises was clearly. valid and
separable from the rest of the decree and could be executed
by M.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil. Appeals Nos. 2464-
and 2465 of 1966.
Appeal from the judgment and order dated April 8, 1964
of the Punjab High Court, Circuit Bench at Delhi in Letters
Patent Appeal No. 75-D of 1962.
M.C. Chagla and Lily Thomas, for the appellants (in
C.A. No. 2464 of 1966) and the respondents (in C.A. Nos.
2465 of 1966).
A.K. Sen and 1. N. Shroff, for the respondents (in
C.A. E No. 2464 of 1966) and the appellants (in C.A. No.
2465 of 1966).
The Judgment of the Court was delivered by
Bachawat, J. One Mehtab Singh, the landlord, is the
owner of the premises No. 279, situate in Dariba Kalan,
Delhi. His son Muni Subrat Dass resides on the first floor
while the ground F floor is in the occupation of the
tenants, Bahadur Singh and Daryao Singh where they set up
a workshop and installed machinery for manufacturing
purposes. According to Muni Subrat the workshop was a
nuisance and caused him great annoyance. He made a number
of complaints to the Municipal Committee for stoppage of
the nuisance. On June 10, 1954, Muni Subrat G and the
tenants agreed in writing to refer the disputes between
them to the arbitration of-two named arbitrators. The
landlord was not a party to the agreement. The arbitrators
made their award on July 14, 1954. The award directed that
(i) Muni Subrat would withdraw the applications pending
before. The Municipal Committee; (ii) the tenants would be
at liberty to run the workshop during the day time upto
December 31, 1957; (iii) on January 1, 1958, the tenants
would remove the machinery; (iv) on the same date they
would give vacant possession of the ground floor to the
landlord and (v) the tenants would pay rent
434
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
to landlord for the period of their occupation. .The award
was signed by the arbitrators and the parties to the
reference and was attested by the landlord. It was filed in
COurt under s. 14 of the Arbitration Act, 1940. On August
26, 1954, the tenants and Muni Subrat stated in Court that
they had no objections against the award. On the same date
the Court pronounced judgment according to the award and a
decree followed accordingly. On August 23, 1958 Muni Subrat
and the landlord jointly applied for execution of the decree
‘for delivery of possession of the premises. In
anticipation of the application for execution of the
decree, on January 9, 1958 the tenants filed an application
under sec. 47 of the Code of Civil Procedure raising the
following objections to the execution of the decree as to
the delivery of possession of the premises to the landlord:
(i) the award was beyond the scope of the reference and was
invalid and the decree based on the invalid award was void;
(ii) the decree was passed in contravention of the Delhi
and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) and
was void; and (iii) the landlord could not execute the
decree.
The Subordinate Judge, First Class, Delhi, dismissed
the objection. He held that (i) that the objection that the
award was without jurisdiction could not be raised under
sec. 47; (ii) the decree was not in contravention of the
Rent Act; and (iii) the landlord was entitled to execute
the decree.On appeal,the Additional Senior Sub-Judge,
Delhi, held that (i) the question as to the validity of the
award could not be agitated in the execution proceedings;
(ii) the decree for eviction was passed in
contravention .of the Rent Act and was void; (iii) the
appeal against the order allowing the landlord to execute
the decree was incompetent and (iv) Muni Subrat was entitled
to execute the decree for removal of the machinery but he
could not execute the decree for eviction. In the result,
he dismissed the appeal in part so far ’as it was directed
against the landlord, allowed the appeal in part against
Muni Subrat and declared that he could get the machinery
removed but he could not claim eviction. The tenants and
the decree-holders filed two separate appeals in the Punjab
High Court at Delhi. Gurdev Singh 1. held that (i) the
first appeal filed against the order in favour of the
landlord was competent; (ii) the decree for eviction did not
contravene the provisions of the Rent Act and (iii) the
landlord was entitled. to execute the decree for eviction.
In the result, he accepted the decree-holder’s appeal and
dismissed the tenant’s appeal. The tenants filed an appeal
under clause 10 of the Letters Patent.A Divisional Bench of
the High Court held that (1) the objection to the validity
of the award could not be entertained in the execution
proceedings; (2) the decree directing delivery of possession
of the-premises to the landlord was passed in contravention
of the Rent Act; (3)neither the landlord nor Muni Subrat
could
435
enforce that part of the decree; (4) the decree directing
removal of the machinery was ’separable and was void and
Muni Subrat was entitled to execute it. In the result, the
DiviSional Bench allowed the appeal and restored the order
of the Additional Senior Sub-Judge, Delhi. In passing
this order the Bench overlooked that the Senior-Sub-Judge
had dismissed the appeal against the landlord as
incompetent. Having regard to the fact that the appeal
against the landlord was competent, the Bench should have
also set aside the order favouring the landlord. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
present appeals have been filed by the tenants as also by
the landlord and Muni Subrat after obtaining certificates
from the High Court.
The following points arise for determination in these
appeals, (1) Can the objection as to the’ validity of the
award be raised after a decree is passed’ on the award, and
can the decree be pronounced to be a nullity on the ground
that it was based on an invalid award; (2) Is the decree
directing the tenants to deliver possession of the premises
to the landlord a nullity on the ground that it was passed
in contravention of the Rent Act; (3) Is this portion of the
decree enforceable either by the landlord or by Muni Subrat;
and (4) Is the decree so far as it directs removal of the
machinery valid and enforceable by Muni Subrat.
The award was filed in Court under s. 14 of the
Arbitration Act and on notice to the tenants and in their
presence a decree, was passed according to the award under
s. 17. It is not Open to the tenants now to take the
objection that the award was in excess of the ’authority of
the arbitrators or was otherwise invalid. Having regard to
the scheme of ss. 14 ’to 17 and 31 to 33 all’ questions
regarding the validity of the award had to be determined by
the Court in which the award was filed and by no other
Court. An award which is invalid on any ground can be set
aside under s. 30. After a decree is passed on the award it
is not’ open to the parties to the reference to raise any’
objection as to’ the validity’ of the award. As between
them the decree conclusively determines that the award is
valid. Nor can the decree be pronounced to be a nullity on
the ground that’ the award was invalid.A decree passed on
an invalid award in arbitrations in suits under the second
schedule to the Code of Civil’ Procedure, 1908, stood on the
same footing, see Rabindra Deb Manna v. Jogendra Deb
Manna(1) where Rankin, ’1. ’observed: "An award made out of
time, Or otherwise ’invalid, is no longer a nullity it
is’liable to be set aside by the Court, but, if not set
aside, a decree made for its enforcement is not without
jurisdiction, Shib Kristo Daw v. Satish Chandra Dutt (1912)
39 Cal. 822."
The next question is whether the decree directing the
tenant to deriver possession-of the premises to the landlord
was. passed
A.I.R. 1923 Cal. 410, 413.
436
in contravention of s. 13 (1) of the Delhi and Ajme Rent
Control Act, 1952. That sub-section provided that:
"Notwithstanding anything to the contrary contained in any
other law or any contract, no decree or order for the
recovery of possession of any premises shall be passed by
any Court in favour of the landlord against any tenant
(including a tenant whose tenancy is terminated): Provided
that nothing in this sub-section shall apply to any suit or
other proceeding for such recovery of possession if the
Court is satisfied.." Then followed a catalogue of grounds
on which the decree for recovery of possession could be
passed. The other sub-sections to s. 13 showed that a decree
or order could be passed on one of those grounds in a suit
or proceeding instituted by a landlord against a tenant.
Section 13 (1) prohibited the Court from passing a decree or
order for recovery of possession of any premises in favour
of a landlord against a tenant except in such a suit or
proceeding and unless the Court was satisfied that a ground
of eviction existed. Now the decree in the present case is
on the face of it one for recovery of possession of the
premises in favour of a landlord against a tenant. The
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
Court passed the decree according to an award under s. 17 of
the Arbitration Act, 1940 in a proceeding to which the
landlord was not a party without satisfying itself that a
ground of eviction existed. On the plain wording of s. 13 (1
) the Court was forbidden to pass the decree. The decree is
a nullity and cannot be enforced in execution.
The contusion that a decree passed in contravention of
s. 13 (1) is a nullity is supported by the decision in
Peachey Property Corpn. v. Robinson(1). In that case the
landlords issued a writ to recover possession of a flat let
to tenants who resided there for non-payment of rent. No
appearance was entered and judgment was signed in default of
appearance. On an application for leave to issue a writ
for possession, the Court held that the judgment was a
nullity as it was given without any determination that it
was reasonable to do so in contravention of s. 3 (1) of the
Rent and Mortgage Interest Restrictions (Amendment) Act,
1933. As the decree was a nullity the Court refused to
issue a writ for possession. Winn, L.J. said :--
"Accordingly,the Rent and Mortgage
Interest Restrictions (Amendment) Act, 1933,
s. 3(1) was made to apply to these premises
and that sub-section provided:
’No Order or judgment for the recovery. of
possession of any dwelling house to which the
principal Acts apply or for the ejection of
a tenant therefrom shall be
(1) [1966] 2 All E,R. 981, 983.
437
made or given unless the Court considers it
reasonable to make such an order or give such
a judgment..
and.. "
One or other of two additional conditions is satisfied.
It is perfectly plain from what I have said that before the
judgment in default of appearance was entered no court
had determined whether it was reasonable to make such an
order or give such a judgment. In my view, therefore, by
express force of that section the judgment in default of
appearance here was a nullity. It was, according to its
terms, a judgment for recovery of possession of these
premises, and that is something which the section prohibits
unless there has been a prior determination by the court
that it was reasonable to give such a judgment."
As the decree for the delivery of possession of the
premises to the landlord is a nullity it cannot be enforced
or executed either by the landlord or by the landlord’s son
Muni Subrat. The decree in so far as it directs the
removal of the machinery from the premises is clearly valid
and separable from the rest of the decree and may be
executed by Muni Subrat.
In the result, it is declared that (a) the objections as
to the validity of the award cannot be entertained in the
execution proceedings; (b) the decree in so far, as it
directs delivery of possession of the premises to the
landlord is a nullity and cannot be executed either by Muni
Subrat or by Mehtab Singh and (c) the decree in so far as it
directs removal of the machinery is valid and may be
executed by Muni Subrat. Subrat to the declarations
mentioned above the appeals are dismissed. There will be no
order as to the costs in this Court.
Y.P. Appeals dismissed.
438
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6