ORDER
The Court
1. The petitioner herein is residing in house bearing T.S. No. 9/2 of Kodiyalbail area within the Mangalore City Corporation belonging to Smt. Somu Hengsu. The petitioner also claims that it had been rented out to one Smt. Kittu Hengsu. The landlord filed Original Suit No. 195 of 1986 on the file of the IV Additional Civil Judge (Junior Division), Mangalore to eject the petitioner under the provisions of the Transfer of Property Act. The said suit was decreed on 12-6-1998 ordering the petitioner to deliver vacant possession of the property. As against that judgment and decree the petitioner preferred an appeal before the appellate Court which also came to be dismissed as they were not brought on record. Therefore, the respondent herein filed Ex. Case No. 113 of 1998 on the file of the 4th Additional Civil Judge (Junior Division), Mangalore, against the petitioner for executing the decree and to obtain possession of the house in question. The judgment-debtor raised objection by filing an application under Section 47 read with Section 151 of the CPC contending that the decree is in executable inasmuch as the decree is null and void. The learned Court below dismissed the Interim Application by order dated 14-9-2001. AS against the said order this petition is filed under Section 151 of the CPC.
2. Heard Sri K.N. Patil the learned Counsel for the petitioner and Sri O. Shivaram Bhat the learned Counsel for the respondents.
3. The learned Counsel for the petitioner has vehemently argued that the owner of the premises alleged in the lawyer’s notice and in the plaint that this petitioner is in occupation of the premises as a tenant on a monthly rent of Rs. 15/-, but he filed the suit in on original side instead of invoking the Karnataka House Rent Control Act as by then the Act had come into force and covering the area where the suit schedule property is situated notwithstanding the fact that the petitioner has denied the relationship of landlord and tenant and that the petitioner contended that she is the owner in possession of the property and that she perfected the title by adverse possession, etc. In view of the fact that the Court has declined to accept all the defence raised by the petitioner up-holding the contention of the plaintiff, it has to be presumed that the petitioner continued to be the tenant of the property. Therefore, the judgment and decree passed by the Civil Court under the Transfer of Property Act is without jurisdiction. The Court below ought to have rejected the execution petition holding that the judgment and decree passed by the Court is unexecutable for want of inherent jurisdiction.
4. In support of this argument, he also placed reliance on the decisions in Yajaman Mothi Ajjappa v. Changalappa; Govindaraja
Mudaliar v. University of Mysore; Laxmangowda v. Maddamma;
Kukminibai Kom Laxman Murkote and Ors. v. Goususab Moulasab Matigar and Ors.; Govindamma v. Murugesh Mudaliar and Ors. and Kiran Singh and Ors. v. Chaman Paswan and Ors., and submitted that the petition deserves to be allowed and the execution petition is liable to be dismissed.
5. Repelling this argument, Sri Shivaram Bhat the learned Counsel submitted that notwithstanding the fact that the schedule property is situated within the Municipal Corporation of Mangalore, the property is not premises as defined under the Karnataka House Rent Control Act as the occupancy right was granted in favour of the petitioner under the Land Reforms Act on application made in Form 7 where the petitioner also had appeared and given consent to grant the land in favour of the respondent. The respondent got the property under a moolageni. Therefore, it continues to be the agricultural land where the house was constructed. Besides that the petitioner has replied on the notice contending that she is not the tenant of the property and thereafter specifically denied the allegation in the plaint and raised a contention that it is also entitled for half share in the property and moolageni was denied on the ground that it is a false and got up one. In addition to that, it is also contended that she has perfected her title by adverse possession. In view of this defence taken by the petitioner, the respondent had no other alternative but to file a suit in the original side. In addition to that, after the judgment and decree came to be passed in favour of the respondent, the petitioner also filed an appeal and that appeal also came to be dismissed. Thus the judgment and decree have become final and conclusive. Besides all this, the petitioner also filed Form 7-A under Section 77-A of the Land Reforms Act before the Deputy Commissioner for declaring her as the tenant and that application is still pending. Therefore, the objection raised by the petitioner before the Court below is unsustainable in law.
6. To substantiate his argument he also placed reliance on Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman and Ors., Ramachandra Bhat v. Rao Talithaya; Gulabi Hengsu v. Vasu Kottari and Mohanlal Goenka v. Benoy Kishna Mukherjee and Ors.
7. In Govindaraj Mudaliar’s case, supra, it is held:
“Even where tenant sets up title in himself and lease gets determined, Section 21 is attracted; no decree for recovery of possession can be passed”.
8. In Yajaman Mothi Ajjappa’s case, supra, this Court has held that the Executing Court can only determine the question as to whether the Court that passed the decree was competent and had jurisdiction to entertain the suit and to pass a decree or not. It has no jurisdiction to find out as to whether the decree passed by such a competent Court is legal or not or is one supported by the evidence on record or is right or wrong. The Executing Court can go behind the decree only to find out as to whether the decree is a nullity on account of the fact that it is one passed by a Court which had no inherent jurisdiction at all.
9. The Single Bench of this Court in Gulabi Hengsu’s case, supra, held that the validity and the executability of the decree can be set up in the course of the execution and the Executing Court is entitled to go into the same, but that must be apparent on the face of the record such as the decree having been passed by a Court which has no inherent jurisdiction to make it.
10. In Laxmangowda’s case, supra, it is held that though it is not open to an Executing Court to go behind the decree under execution or examine its legality or correctness, it is well-settled that such Court is under a duty to examine an objection directed against the validity of the decree under execution on the plea that the decree is a nullity for lack of inherent jurisdiction of the Court making it and if such objection is found to be sustainable, to refuse to proceed with the execution.
11. In Smt. Rukminibai Kom Laxman Murkote’s case, supra, it is held that a bar contained under Section 21 is against the Court. If the Court comes to the conclusion that it is required to make a decree in favour of the landlord and against the tenant in respect of a premises to which the Act applies, the bar under Section 21 gets attracted whether or not the defendant has taken the plea that he is a tenant of the premises.
12. In that case, the plaintiff contended in the HRC case that the defendant was a tenant but the defendant denied. Therefore, he came to the Civil Court to get his title established. The Civil Court while discussing the evidence on record led by the plaintiff negatived the contention of the defendant-appellant that he was the owner of the property and gave a clear finding that he is a tenant. Therefore, it is not estoppel against the tenant to say that he cannot contend now that he is a tenant. In this case, the petitioner denied that she is not a tenant and set up the plea of ownership and Court held against her plea.
13. The Division Bench of this Court in Smt. Govindamma’s case, supra, held that the scope and connotation of a tenant includes a person continuing in occupation even after termination of his tenancy, the relationship of landlord and tenant continues until the tenant is actually evicted.
14. In that case, the defendants contended that the plaintiff was not the owner of the suit schedule premises and that they were not the tenants of the schedule premises. They claimed possession of and title to the premises on the basis of agreements of sale alleged to have been
executed by the plaintiffs predecessors-in-title, in their favour. Under the circumstances, the Court has observed as referred to above.
15. Their Lordships of the Supreme Court in Kiran Singh’s case, supra, held that a decree passed without jurisdiction is a nullity. In that case, the defendants pleaded that they have been in possession of the lands as tenants of batai system sharing with the landlord from Fasli 1336 and had acquired occupancy right under the tenants that the 2nd party had no right to settle on the plaintiffs, etc.
16. Similarly in H. Shiva Rao and Anr. v. Cecilia Pereira and Ors., it is held that an order or decree for eviction of a tenant passed prior to the date when the rent control Act was made applicable to the area in question cannot be executed against the tenant after the Act was made applicable to the area in question as the Rent Control Act is a beneficial legislation.
17. In Vasudev Dhanjibhai Modi’s case, supra their Lordships have held that when the decree is made by a Court which has no inherent jurisdiction to make it, the objection as to its validity may be raised in an execution proceedings after the objections appear on the face of the record. But, where the objections as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the question raised and decided at the trial or which could have been but have not been raised, the Executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In this case, the petitioner never claimed to be the tenant under Karnataka Rent Control Act.
18. In Mohanlal Goenka’s case, supra, it is held that failure to raise such an objection which went to the root of the matter precludes him from raising the plea of jurisdiction on the principle of constructive res judicata after the property has been sold to the auction-purchaser who has entered into possession. There are two occasions on which the judgment-debtor raised the question of jurisdiction for the first time. It did not however, press it with the result that the objection must be taken to have been impliedly overruled.
19. This Court in Gulabi Hengsu’s case, supra, has held that objection as to the jurisdiction of Court to pass a decree requiring examination of questions raised and decided at the trial or requires determination of facts afresh, the Executing Court has no jurisdiction to entertain such objection.
20. From these decisions, it is clear that the petitioner wants the Court to determine the question of jurisdiction as afresh which is impermissible. Neither in the written statement nor in the appellate Court this contention was raised notwithstanding the fact, the Rent Control Act which is piece of social legislation for the benefit of the tenants. Therefore, now it is not open to the petitioner to raise this question before the Court.
21. Even otherwise also this plea is no more available to her as there is no evidence to show that this is the premises as defined under Clause (n) of Section 3 of the Karnataka Rent Control Act in view of the fact that the occupancy right in respect of this property, admittedly, was granted to the respondent by the Land Tribunal as she was in possession of the property as moolageni tenant. It is also an admitted fact that the petitioner filed an application to declare her as tenant under Section 77-A of the Land Reforms Act by application filed in Form 7-A before the Deputy Commissioner, Dakshina Kannada. Therefore, the question of tenancy under the Karnataka Rent Control Act is only academic. However, the petitioner has not raised this contention that she is a tenant under the Land Reforms Act in this petition or before the Court below. Therefore, I refrain from dwelling upon this question. It is for the parties to work out their remedy in the appropriate forum. However, the objection raised in this case before the Court below and also in this petition is not maintainable. Therefore, the learned Court below has rightly rejected the same.
22. Accordingly, this petition is dismissed.