Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10
CASE NO.:
Appeal (civil) 1058 of 2003
PETITIONER:
Sarwan Kumar & Anr.
RESPONDENT:
Madan Lal Aggarwal
DATE OF JUDGMENT: 06/02/2003
BENCH:
Syed Shah Mohammed Quadri & Ashok Bhan
JUDGMENT:
J U D G M E N T
(arising out of SLP No. 18553 of 2001)
BHAN, J.
Leave granted.
The short point which falls for determination in this appeal is :
whether a decree for ejectment passed by a civil court qua a commercial
tenancy in the State of Delhi before the declaration of law by the Supreme
Court in Gian Devi Anand Vs. Jeevan Kumar, 1985 Suppl.(1) SCR 1, that
such a tenancy is heritable, is executable or the judgment-debtors can
successfully object to the execution of the decree on the ground that same
was passed by a court lacking inherent jurisdiction and therefore
inexecutable?
Property No. 212/IX, Chawri Bazar Delhi, was owned by Smt. Sarla
Devi, wife of the respondent-landlord (hereinafter referred to as "the decree-
holder"). She let out the suit premises in 1969 at a monthly rent of Rs. 75/-
for commercial purposes to late Shri Amar Nath, predecessor-in-interest, of
the appellants (hereinafter referred to as "the judgment-debtors"). Smt.
Sarla Devi died on 28th January, 1980. She had executed a will dated 25th
April, 1979 in favour of the decree-holder. The Decree-holder obtained the
letters of administration by filing a probate case No. 41 of 1980. By virtue
of the probate given in his favour the decree-holder became the owner of
the suit premises.
The decree-holder served a notice to quit under Section 106 of the
Transfer of Property Act, 1882 on late Shri Amar Nath. Amar Nath in
response to the notice to quit stated that he was not a tenant in his personal
capacity and the tenant in the tenanted premises was a partnership firm M/s
Pelican Paper and Stationary Mart in which he was one of the partners.
Amar Nath expired on 27th January, 1982. The decree-holder filed a suit for
possession and mesne profits against the judgment-debtors in the court of
District Judge, Delhi stating therein that Amar Nath was the tenant of the
suit premises in his individual capacity. It was alleged that the tenancy in
favour of the judgment-debtors being the legal heirs of the original tenant
was not heritable. Judgment-debtors were not served personally. Service on
them was affected through publication in the newspaper in February, 1985.
An ex-parte decree of possession/recovery of mesne profits was passed
against them. Civil Court recorded a finding that Amar Nath after the
termination of tenancy became the statutory tenant and on his death the
tenancy came to an end and accordingly a decree for possession of the suit
premises along with the arrears of rent of damages was passed.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10
Thereafter, on 1st July, 1985 the decree-holder filed the execution
application. On 21st August, 1986 judgment-debtors filed an application
under Order 9 Rule 13 for setting aside the ex-parte decree which was
dismissed by the trial court on 25th January, 1993. Judgment-debtors filed
a regular first appeal in the High Court against the order of the trial Court.
On 26th July, 1995, the High Court stayed the proceedings in the execution
petition. On 7th September, 1998 the appeal filed by the judgment-debtors
was dismissed by the High Court. The judgment-debtors thereafter filed
Special leave Petition (Civil) No. 20667 of 1998. Same was dismissed
leaving it open to the judgment-debtors to raise the question regarding the
executibility of the decree before the appropriate forum. The following
order was passed.
"Learned counsel appearing for the
petitioners urged that since the petitioners
are protected tenants, neither any decree for
eviction can be passed nor can such decree
be executed against them. We are not
inclined to go into this question as it is not
the subject matter of the order under appeal.
The special leave petition is dismissed. It is
open to the petitioners to raise this ground
before the appropriate forum, if available to
them under law."
Soon after the dismissal of the special leave petition the judgment-
debtors filed regular first appeal No. 39 of 2000 in the High Court against
the original decree dated 2nd April, 1985 passed by the civil court along with
an application for condonation of delay of almost 15 years in filing the
appeal. Interlocutory application for condonation of delay was rejected and
consequently the regular first appeal No. 39 of 2000 was dismissed on 24th
January, 2000 being barred by time.
After the dismissal of the special leave petition by this Court the
execution proceedings revived. The judgment-debtors filed its objections
under Section 47 of the Code of Civil Procedure (CPC) objecting to the
execution of the decree, inter alia, on the ground that commercial tenancy in
the State of Delhi was heritable in view of the law declared by this Court in
the case of Gian Devi Anand’s case (supra) and therefore the civil court
lacked the inherent jurisdiction to pass such a decree. After the death of the
statutory tenant the possession of the judgment-debtors did not become
unlawful and illegal. They continued to have estate in the tenanted premises
which were heritable and the jurisdiction of the civil court to pass an order
of ejectment was barred under Section 50 of the Delhi Rent Control Act,
1958 (hereinafter referred to as "the Act"). Under the Act tenancy rights of
commercial premises which were heritable would devolve on the legal heirs
under ordinary law of succession.
Executing Court over-ruled the objections filed by the judgment-
debtors holding that the executing court could not go beyond the decree
which had obtained finality. The executing court could not refuse to execute
the decree passed by civil court only because subsequently Supreme Court in
Gian Devi Anand’s case (supra) held that the commercial tenancy was
heritable. Appellants being aggrieved filed a petition under Article 227 of
the Constitution of India against the dismissal of their objections to the
execution of the decree. High Court took the same view regarding the
applicability of the law declared by this Court in Gian Devi Anand’s case
(supra) and relying upon the decision of this Court in Bharmappa Nemanna
Kawale & Anr. Vs. Dhondi Bhima Patil & Ors., 1996 (8) SCC 243. The
High Court held as under:
"In such matters, the doctrine of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10
prospective/retrospective overruling shall
have to yield place to the doctrine of res
judicata and whenever a matter has been
finally decided the decree could not be
declared to be nullity simply because by a
subsequent judgment it was clarified that the
civil court had no jurisdiction and the matter
should have been tried by the Rent
Controller."
Delhi High Court in Gian Devi Anand Vs. Jeevan Kumar case
reported in 1980 (17) DLT 197, which was in appeal before the Supreme
Court in Gian Devi Anand’s case (supra) took the view that commercial
tenancy was not heritable and therefore on the death of the original tenant
the contractual tenancy comes to an end and the protection afforded to a
statutory tenant under the Rent Act is not available to the heirs and legal
representatives of the statutory tenant. In the appeal preferred against the
judgment of Delhi High Court, a Constitution Bench of this Court overruled
the view taken by the High Court and after referring to the relevant
provisions of the Delhi Rent Control Act, 1958 extensively before and after
its amendment by Act 18 of 1976 took the view:
"Accordingly, we hold that if the Rent Act
in question defines a tenant in substance to
mean a tenant who continues to remain in
possession even after the termination of the
contractual tenancy till a decree for eviction
against him is passed, the tenant even after
the determination of the tenancy continues
to have an estate or interest in the tenanted
premises and the tenancy rights both in
respect of residential premises and
commercial premises are heritable. The
heirs of the deceased tenant in the absence
of any provision in the Rent Act to the
contrary will step into the position of the
decreased tenant and all the rights and
obligations of the deceased tenant including
the protection afforded to the deceased
tenant under the Act will devolve on the
heirs of the deceased tenant."
On the question as to who would inherent the tenancy right, it was observed:
"In the absence of any provision
regulating the right of inheritance, and the
manner and extent thereof and in the
absence of any condition being stipulated
with regard to the devolution of tenancy
rights on the heirs on the death of the tenant,
the devolution of tenancy rights must
necessarily be in accordance with the
ordinary law of succession."
In the same judgment this Court held that the landlord can seek the eviction
of the tenants of the properties which were covered by the Rent Act only on
the grounds specified in the Rent Act.
It is not in dispute before us that to a premises to which the Rent Act
applies, eviction can only be ordered by the authorities/rent controller
constituted under the Rent Act and the civil courts have no jurisdiction to
entertain suits for eviction of the tenants from the premises to which the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10
Rent Act applies. Further, it is not in dispute that the owners of tenanted
premises whether residential or commercial, is permitted by the Rent
Controller to seek eviction of the tenant only on the grounds specified in the
Rent Act. Counsel for the respondent-decree holder did not also dispute that
after the declaration of the law by this Court in Gian Devi Anand’s case
(supra) (judgment was delivered on 1st May, 1985) any decree passed by the
civil court would be non-est having been passed by a court lacking inherent
jurisdiction. But according to him to the decrees passed prior to the
declaration of the law by this Court in Gian Devi Anand’s case (supra) this
rule would not apply. According to him such decrees are valid and lawful
having been passed by the court of competent jurisdiction at the time of
passing of the decree and therefore capable of being executed. The decrees
passed prior to the declaration of law in Gian Devi Anand’s case (supra) did
not cease to be operative and inexecutable in view of the law laid down in
that case. In other words, contention is that Gian Devi Anand’s case (supra)
would be prospective in application and would not be applicable to the
decree which was passed prior to the judgment of the Supreme Court in
Gian Devi Anand’s case (supra). As against this counsel for the appellant
relying upon the decision of this Court in Dr. Suresh Chandra Verma & Ors.
Vs. The Chancellor, Nagpur University & Ors., 1990 (4) SCC 55, and Lily
Thomas & Ors. Vs. Union of India & Ors., 2000 (6) SCC 224, contended
that this Court does not legislate and only interprets the law and when a
particular provisions is interpreted then it in effect declares the law as it is
stood from the beginning as per its decision and it would be deemed as if
that was the law. It is open to the Court to protect the earlier decision to
make the rule applicable prospectively and save the decisions which have
already become final or have been given effect to. In the absence of any
specific observations to the effect that the law declared in Gian Devi
Anand’s case (supra) would be prospective in operation and would not
apply to the decrees already passed by the civil courts, it cannot be held that
the rule laid down in Gian Devi Anand’s case (supra) would not apply to the
decrees which had been passed by the civil court having no jurisdiction to do
so. In Dr. Suresh Chandra Verma & Ors. (supra) this Court held:
"The second contention need not detain us
long. It is based primarily on the provisions
of Section 57(5) of the Act. The contention
is that since the provisions of that section
give power to the Chancellor to terminate
the services of a teacher only if he is
satisfied that the appointment "was not in
accordance with the law at that time in
force" and since the law at that time in force,
viz. On March 30, 1985 when the appellants
were appointed, was the law as laid down in
Bhakre case which was decided on
December 7, 1984, the termination of the
appellants is beyond the powers of the
Chancellor. The argument can only be
described as nave. It is unnecessary to
point out that when the court decides that the
interpretation of a particular provision as
given earlier was not legal, it in effect
declares that the law as it stood from the
beginning was as per its decision, and that it
was never the law otherwise. This being the
case, since the Full Bench and now this
Court has taken the view that the
interpretation placed on the provisions of
law by the Division Bench in Bhakre case
was erroneous, it will have to be held that
the appointments made by the University on
March 30, 1985 pursuant to the law laid
down in Bhakre case were not according to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10
law. Hence, the termination of the services
of the appellants were in compliance with
the provisions of Section 57(5) of the Act."
In Sarla Mudgal (Smt.) President, Kalyani & Ors. Vs. Union of India
& Ors., 1995 (3) SCC 635, this Court considered the validity of the second
marriage of a Hindu husband after conversion to Islam without having the
first marriage dissolved under the law. It was held that such a marriage
would be void in terms of the provisions of Section 494, IPC and the
husband would be guilty of the offence under Section 494, IPC. It was held:
"Answering the questions posed by us in
the beginning of the judgment, we hold that
the second marriage of a Hindu husband
after conversion to Islam, without having his
first marriage dissolved under law, would be
invalid. The second marriage would be void
in terms of the provisions of Section 494
IPC and the apostate-husband would be
guilty of the offence under Section 494
IPC."
In Lily Thomas & Ors. Case (supra) while rejecting the contention
that the law declared in Sarla Mudgal’s case (supra) could not be applied to
persons who had solemnised marriages in violation of the mandate of law
prior to the date of the judgment, this court held:
"We are not impressed by the arguments to accept
the contention that the law declared in Sarla
Mudgal case cannot be applied to persons who
have solemnised marriages in violation of the
mandate of law prior to the date of judgment. This
Court had not laid down any new law but only
interpreted the existing law which was in force. It
is a settled principle that the interpretation of a
provision of law relates back to the date of the law
itself and cannot be prospective from the date of
the judgment because concededly the court does
not legislate but only gives an interpretation to an
existing law. We do not agree with the arguments
that the second marriage by a convert male Muslim
has been made an offence only by judicial
pronouncement. The judgment has only
interpreted the existing law after taking into
consideration various aspects argued at length
before the Bench which pronounced the judgment.
The review petition alleging violation of Article
20(1) of the Constitution is without any substance
and is liable to be dismissed on this ground alone."
Invocation of the doctrine of prospective overruling relying upon
Bharmappa Nemanna Kawale’s case (supra) by the High Court is misplaced.
In Bharmappa Nemanna Kawale’s case (supra) civil court passed to decree
for eviction against the tenant holding that he was not a tenant which decree
became final. When the plea of jural relationship of landlord and tenant was
negatived by the executing court the landlord filed a writ petition in the High
Court in which the High Court directed the executing court to go into that
question. On these facts this Court over-turning the decision of the High
Court held:
"Shri Bhasme, the learned counsel for the
respondents, contended that in view of the specific
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10
language employed in Section 85-A of the
Bombay Tenancy and Agricultural Lands Act,
1948 (67 of 1948) the only competent authority
that has to go into the question is the revenue
authority under the Act and the civil court has no
jurisdiction to go into the question whether the
appellant is a tenant or not. Therefore, the High
Court was right in directing the executing court to
go into the question. It is rather unfortunate that
the respondent has allowed the decree holding that
he is not a tenant to become final. Having allowed
it to become final, it is not open to him to contend
that he is still a tenant under the Act and therefore
the decree is a nullity. Under those circumstances,
the executing court was right in refusing to
entertain the objection for executing the decree.
The High Court was not justified, in the
circumstances, in directing the executing court to
consider the objection."
This Court neither considered the doctrine of prospective overruling nor did
it go into the question of executability of a decree passed by a court having
no jurisdiction. This court overruled the view taken by the High Court
because the tenant let the earlier civil court decree to the effect that he was
not a tenant became final. The decree passed by civil court under the
circumstances was perfectly valid. Question of jural relationship of landlord
and tenant could not be gone into by the executing court afresh. It was a
short judgment and no other point was considered by this Court in the said
judgment.
For the first time this Court in Golak Nath Vs. State of Punjab, AIR
1967 SC 1643 accepted the doctrine of "prospective overruling". It was
held:
"As this Court for the first time has been called
upon to apply the doctrine evolved in a different
country under different circumstances, we would
like to move warily in the beginning. We would
lay down the following propositions: (1) The
doctrine of prospective overruling can be invoked
only in matters arising under our Constitution; (2)
it can be applied only by the highest court of the
country, i.e., the Supreme Court as it has the
constitutional jurisdiction to declare law binding
on all the courts in India; (3) the scope of the
retroactive operation of the law declared by the
Supreme Court superseding its "earlier decisions"
is left to its discretion to be moulded in accordance
with the justice of the cause or matter before it."
The doctrine of "prospective overruling" was initially made applicable to
the matters arising under the Constitution but we understand the same has
since been made applicable to the matters arising under the statutes as well.
Under the doctrine of "prospective overruling" the law declared by the Court
applies to the cases arising in future only and its applicability to the cases
which have attained finality is saved because the repeal would otherwise
work hardship to those who had trusted to its existence. Invocation of
doctrine of "prospective overruling" is left to the discretion of the court to
mould with the justice of the cause or the matter before the court. This
Court while deciding the Gian Devi Anand’s case (supra) did not hold that
the law declared by it would be prospective in operation. It was not for the
High Court to say that the law laid down by this Court in Gian Devi Anand’s
case (supra) would be prospective in operation. If this is to be accepted then
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10
conflicting rules can supposedly be laid down by different High Courts
regarding the applicability of the law laid down by this Court in Gian Devi
Anand’s case (supra) or any other case. Such a situation cannot be permitted
to arise. In the absence of any direction by this Court that the rule laid down
by this Court would be prospective in operation the finding recorded by the
High Court that the rule laid down in Gian Devi Anand’s case (supra) by this
Court would be applicable to the cases arising from the date of the judgment
of this Court cannot be accepted being erroneous.
This Court in Sushil Kumar Mehta vs. Govind Ram Bohra 1990 (1)
SCC 193 after referring to and exhaustively dealing with and following
various judgments of this Court held that a decree passed by a civil court in a
rent matter, the jurisdiction of which was barred by the Haryana Urban
(Control of Rent & Eviction) Act, 1973, having been passed by a court
lacking inherent jurisdiction to entertain the suit for ejectment was a nullity
and the judgment-debtors successfully could object to the execution of the
said decree being a nullity.
The facts of the said case were almost identical to the facts of the
present case. The facts which led to the decision in that case were: landlord
filed a suit in the court of Senior Sub Judge for ejectment and recovery of
arrears of rent and damages for use and occupation of a shop at Gurgaon, let
out to the tenant. An ex parte decree was passed. Issue regarding
jurisdiction of the civil court was framed and the same was decided against
the tenant. Application under Order 9 Rule 13 to set aside the ex parte
decree was dismissed. It was confirmed on appeal. Revision was dismissed
by the High Court. When the landlord filed the application for execution of
the decree to obtain possession, the tenant objected under section 47 of CPC
contending that the decree of the civil court was a nullity as the premises in
question were governed by the Rent Act. The Controller under the Act was
the only competent forum for claims of ejectment on fulfillment of the
conditions enumerated in the Rent Act. That the civil court was divested of
jurisdiction to take cognizance and pass a decree for ejectment of the tenant.
The objection was overruled by the executing court and further the revision
filed by the tenant was dismissed by the High Court. Simultaneously, he
also filed a writ petition under Article 227 which was also dismissed.
Against the dismissal of the writ petition under Article 227 the appeal was
filed in this Court. It may be mentioned that a issue regarding the
jurisdiction of the civil court to try a suit for ejectment was framed and
decided in favour of the landlord in the civil suit. Tenant had also been
divested of the possession in execution of the decree passed by the civil
court. This Court after exhaustively referring to the number of previous
judgments of this court held that to a building let out and governed under the
Rent Act the only competent authority to pass the decree for ejectment was
the Rent Controller constituted under the Rent Act and the civil court lacked
the inherent jurisdiction to take cognizance of the cause and pass a decree of
ejectment therein. It was further held that objection to the execution of the
decree being a nullity having been passed by a court lacking inherent
jurisdiction could be raised in execution proceedings and the finding
recorded in decree that the civil court had the jurisdiction would not operate
as res judicata. It was held:
"Thus it is settled law that normally a decree
passed by a court of competent jurisdiction,
after adjudication on merits of the rights of
the parties, operates as res judicata in a
subsequent suit or proceedings and binds the
parties or the persons claiming right, title or
interest from the parties. Its validity should
be assailed only in an appeal or revision as
the case may be. In subsequent proceedings
its validity cannot be questioned. A decree
passed by a court without jurisdiction over
the subject matter or on other grounds which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10
goes to the root of its exercise or
jurisdiction, lacks inherent jurisdiction. It is
a coram non judice. A decree passed by
such a court is a nullity and is nonest. Its
invalidity can be set up whenever it is
sought to be enforced or is acted upon as a
foundation for a right, even at the stage of
execution or in collateral proceedings. The
defect of jurisdiction strikes at the authority
of the court to pass a decree which cannot be
cured by consent or waiver of the party.."
[Emphasis supplied]
{Para 26}
In para 27, it was further observed:
"In the light of this position in law the
question for determination is whether the
impugned decree of the civil court can be
assailed by the appellant in execution. It is
already held that it is the Controller under
the Act that has exclusive jurisdiction to
order ejectment of a tenant from a building
in the urban area leased out by the landlord.
Thereby the civil court inherently lacks
jurisdiction to entertain the suit and pass a
decree of ejectment. Therefore, though the
decree was passed and the jurisdiction of the
court was gone into in issue Nos. 4 and 5 at
the ex parte trial, the decree thereunder is a
nullity, and does not bind the appellant.
Therefore, it does not operate as a res
judicata. The courts below have committed
grave error of law in holding that the decree
in the suit operated as res judicata and the
appellant cannot raise the same point once
again at the execution."
[Emphasis supplied]
Appeal was allowed. Since the possession had already been taken in
execution of the decree the Court ordered restoration of the possession to the
tenant and thus observed:
"This Court would relieve the party from
injustice in exercise of power under Article
136 of the Constitution when this Court
noticed grave miscarriage of justice. It is
always open to the appellant to take aid of
Section 144 CPC for restitution. Therefore,
merely because the decree has been
executed, on the facts when we find that
decree is a nullity, we cannot decline to
exercise our power under Article 136 to set
at nought illegal orders under a decree of
nullity. The appeal is accordingly allowed.
But in the circumstances parties are directed
to bear their own costs."
This decision was later on followed by this Court in Urban
Improvement Trust vs. Gokul Narain 1996 (4) SCC 178. We need not refer
to the earlier decisions of this Court taking the same view which have been
referred to and find mentioned in Sushil Kumar Mehta’s case (supra).
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10
In the present case because of the operation of Section 14 of the Act
the only authority to pass a decree for ejectment of the tenanted premises is
the Rent Controller appointed under the Act and Section 50 of the Act
specifically bars the jurisdiction of the civil court to entertain any suit or
proceeding in so far as it relates to the eviction of any tenant from the
premises which were covered by the Delhi Rent Control Act. The civil court
lacked the inherent jurisdiction to take cognizance of the cause and to pass a
decree. Challenge to such a decree on the ground of nullity could be raised
at any later stage including the execution proceedings. Tenancy of the
building was governed by a special Act and therefore the decree passed by
the civil court was a nullity and therefore inexecutable. Judgment-debtors
had not filed their written statement in the civil court and no issue regarding
the jurisdiction of the civil court to try the suit was framed. Tenant in the
special leave petition in this Court raised the contention that the eviction
decree passed by the civil court could not be executed against them. This
Court refused to go into that question as it was not the subject matter of the
order under appeal. It was left open to the judgment-debtors to raise this
ground before the appropriate forum, if available to them under law. The
only forum where the judgment-debtors could raise the objection regarding
the executability of the decree was in the execution proceedings which they
did. Since the jurisdiction of the civil court was barred, the decree passed by
it was a nullity and the judgment-debtors could successfully raise objection
regarding the executability of such a decree. The executing court erred in
holding that judgment-debtors could not raise the objection to the
executability of the decree being nullity having been passed by a court
lacking inherent jurisdiction to do so. This Court in Gian Devi Anand’s case
(supra) did not lay down any new law but only interpreted the existing law
which was in force. As was observed by this Court in Lily Thomas’s case
(supra) the interpretation of a provision relates back to the date of the law
itself and cannot be prospective of the judgment. When the court decides
that the interpretation given to a particular provision earlier was not legal, it
declares the law as it stood right from the beginning as per its decision. In
Gian Devi Anand’s case (supra) the interpretation given by the Delhi High
Court that commercial tenancies were not heritable was overruled being
erroneous. Interpretation given by the Delhi High Court was not legal. The
interpretation given by this Court declaring that the commercial tenancies
heritable would be the law as it stood from the beginning as per the
interpretation put by this Court. It would be deemed that the law was never
otherwise. Jurisdiction of the civil court has not been taken away by the
interpretation given by this Court. This Court declared that the civil court
had no jurisdiction to pass such a decree. It was not a question of taking
away the jurisdiction it was the declaration of law by this Court to that
effect. The civil court assumed the jurisdiction on the basis of the
interpretation given by the High Court in Gian Devi Anand’s case, which
was set aside by this Court.
For the reasons stated above, the appeal is accepted. The order passed
by the High Court as well as the executing court regarding the executability
of the decree passed by the civil court are set aside. It is held that the
jurisdiction of the civil court to pass the decree for ejectment was barred. A
decree passed by a Court having no jurisdiction over the subject matter
would be a nullity and the judgment-debtor can object to the execution of
such a decree being a nullity and non est. Its invalidity can be set up
whenever it is sought to be enforced including the stage of execution of the
decree or any other collateral proceedings. We are conscious of the fact that
it would work a great hardship on the respondent-decree holder who would
not be able to reap the benefit of the decree passed in his favour having won
at all the stages but the vagaries of law cannot be helped. Accordingly,
appeal is accepted. Orders of the High Court and the executing court are set
aside. It is held that the decree obtained by the decree-holder cannot be
executed being a nullity and non est. The parties are directed to bear their
own costs.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10