Bahadur Singh & ANR Vs. Muni
Subrat Dass & ANR [1968] INSC 250 (16 October 1968)
16/10/1968
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] 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.
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 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
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 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 there from 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.
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