judgement:
ivil Appeal No. 2116 of 1972.
From the Judgment and Order dated 1.2.1971 of the Madhya Pradesh High Court at Jabalpur in S.A. 517 of 1969.
S.P. Singh for the Appellants.
Uday U. Lalit and A.G. Ratnaparkhi for the Respondents.
The Order of the Court was delivered by OZA, J.
This appeal arises out of the Judgment dated 1.2.1971 of the High Court of Madhya Pradesh in Second Appeal No. 5 17/69, wherein the learned Judge of the High Court dismissed the Second Appeal filed by the present appellant.
146 The present appellant filed a suit for injunction and possession on the basis of a registered sale deed dated 28.4.66 executed by Smt.
Yashoda Bai in his favour with respect to immovable property including agricultural lands and houses.
The property originally belonged to her husband and after his death she got it as a limited owner and by influx of time and by coming into force of the , she acquired the rights of an absolute owner.
On 28.4.63, she adopted respondent Nain Singh as her son and executed a document said to be the Deed of Adoption.
This document is not a registered document and the trial court admitted it in evidence in proof of adoption.
This document, in addition to recital of the factum of adoption in presence of Panchayat in accordance with the custom of the Community also contained a covenant wherein she had stated that after this deed of adoption her adopted son will be entitled (Hakdar) to the whole property including movable and immova ble and she will have no right to alienate any part of the property after this deed of adoption.
The trial court decreed the suit.
The first appellate court dismissed the suit setting aside the decree passed by the trial court.
The learned judge of the High Court consid ering the impact of section 12 of the Hindu Adoptions and Mainte nance Act rightly held that the adopted son, in view of the proviso (C) to section 12, will only be entitled to property after the death of the adoptive mother but the learned judge felt that the further covenant in the adoption deed deprived her of that right and conferred that right on the adopted son, on this basis the learned judge of the High Court came to the conclusion that the widow after executing this deed of adoption had no right left in the property and therefore a transfer executed by her will not confer any title on the plaintiff.
It is on this basis that the High Court main tained the Judgment of the lower appellate court dismissing the suit of the plaintiffappellant.
Against this, by Special leave, this appeal has come to this Court.
Learned counsel for the appellant contended that the document which is described as a deed of adoption, in sub stance, is in two parts.
One recites the facturn of adoption and the second contains the covenant wherein she has relin quished her rights in the property and conferred rights on adopted son.
According to the learned Counsel, so far as it refers to adoption, the courts below were right in admitting the document as an evidence of adoption but so far as it refers to a deed of relinquishment or conferment of right on the adopted son, will be hit 147 by section 17(1)(b) read with section 49 of the Indian and, therefore, the High Court was not right in relying on this clause to come to the conclusion that the widow Smt.
Yashoda Bai had no right to transfer the property in favour of plaintiff appellant.
Section 12 of the reads as follows: "12.
Effects of adoption: An adopted child shall be deemed to be the child of his or her adoptive father of mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be served and replaced by those created by the adoption in the adoptive family: Provided that: (a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth: (b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obliga tions, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth: (c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption.
" Proviso (C) of this Section departs from the Hindu General Law and makes it clear that the adopted child shall not divest any person of any estate which has vested in him on her before the adoption.
It is clear that in the present case, Smt.
Yashoda Bai who was the limited owner of the property after the death of her husband and after came into force, has become an absolute owner and therefore the property of her husband vested in her and therefore merely by adopting a child she could not be de prived of any of her rights in the property.
The adoption would come into play and the adopted child could get the rights for which he is entitled after her 148 death as is clear from the Scheme of section 12 proviso (C).
section 13 of the Hindu Adoption and Maintenance Act reads: 13.
Right of adoptive parents to dispose of their properties: Subject to any agreement to the contrary, an adoption does not deprive the adoptive father or mother of the power to dispose of his or her property by transfer inter vivos or by will.
This Section enacts that when the parties intend to limit the operation of proviso (C) to section 12, it is open to them by an agreement and it appears that what she included in the present deed of adoption was an agreement to the contrary as contemplated in section 13 of the Hindu Additions and Maintenance Act.
Section 17(1)(b) of the clearly pro vides that such a document where any right in movable property is either assigned or extinguished will require registration.
It could not be disputed that this part of the deed which refers to creation of an immediate right in the adopted son and the divesting of the right of the adoptive mother in the property will squarely fall within the ambit of section 17(1)(b) and therefore under section 49 of the , this could not be admitted if it is not a registered document.
Unfortunately, the Hon 'ble Judge of the High Court did not notice this aspect of the matter and felt that what could not be done because of the proviso (c) to section 12 has been specifically provided in the document itself but this part of the document could not be read in evidence as it could not be admitted.
In view of this, the appeal is al lowed.
The Judgments of the High Court and that of the lower appellate Court are set aside and that of the trial court is restored.
In view of these special circumstances, there is no order as to costs.
N.P.V. Appeal allowed.

summary/full:
In a suit for injunction and possession of the suit property, on the basis of a registered sale deed executed by the widow of the owner of the property, filed by the appel lants, the question of admissibility of an unregistered document, said to be Deed of Adoption, by which the widow conferred on the adopted son rights in her property and relinquished her right to alienate any part of the property, came up for consideration.
The trial court accepted the document only in proof of adoption, and decreed the suit.
The first appellate court set aside the decree.
On appeal.
the High Court maintained lower appellate court 's judgment and held that after execut ing the deed of adoption, the widow had no right left in the property and, therefore, a transfer executed by her would not confer any title on the appellants.
Aggrieved, the appellants filed an appeal, by special leave, in this Court contending that as the deed 'would be hit by section 17(1)(b) read with section 49 of the Indian , regarding relinquishment or conferment of right on the adopted son, the High Court was not right in relying on this clause to come to the conclusion that the widow had no right to transfer the property in favour of the appellants.
Allowing the appeal, the Court, HELD: 1.
Proviso (c) Section 12 of the , departs from the Hindu General Law and 145 makes it clear, that the adopted child shall not divest any person of any estate which has vested in him or her before the adoption.
Section 13 enacts that when the parties intend to limit the operation of proviso (c) to Section 12, it is open to them by an agreement to the contrary.
[148C] In the instant case, the widow was the limited owner of the property after the death of her husband.
But after , came into force, she has become an absolute owner.
Therefore, the property of her husband vested in her.
Merely by adopting a child, she could not be deprived of any of her rights in the property.
The adoption would come into play and the adopted child could get the rights for which he is entitled, after her death.
[147G H] 2.
Section 17(1)(b) of the clear ly provides that a document, where any right in movable property is either assigned or extinguished, will require registration.
[148D] In the instant case, that part of the deed which refers to creation of an immediate right in the adopted son and divesting of the right of the adoptive mother in the proper ty will squarely fail within the ambit of Section 17(1)(b) and, therefore, under Section 49 of the , this could not be admitted if it is not a registered docu ment.
[148E]


judgement:
iminal Appeal No. 28 of 1956.
Appeal by special leave from the judgment and order dated June 21, 1954, of the Calcutta High Court in Criminal Revision No. 811 of 1953.
1264 Ranadeb Chaudhury and P. K. Chatterjee, for the appellants.
B. Sen and P. K. Bose, for the respondents.
September 11.
The Judgment of the Court was delivered by KAPUR J.
This appeal by special leave raises a question of interpretation of section 237 of the Indian Companies Act.
Appellant No. 1 is One of the past directors of the Bank of Commerce Ltd., now in liquidation and appellant No. 2 was its Managing Director.
The Bank was ordered to be wound up by the High Court of Calcutta on August 7, 1950, and one G. K. Dutt, Bar at law was appointed its Official Liquidator but on September 7, 1950, the Official Receiver was appointed in place of Dutt.
On July 23, 1952, respondent No. 1 filed in Court of the Presidency Magistrate a complaint against the appellant under sections 120B, 406, 467, 477A, Indian Penal Code and 182A of the Indian Companies Act and stated that he was doing so under the authority of the official liquidator and the official liquidator had obtained the directions of the High Court to file the complaint.
On May 5, 1953, the appellant applied to the I residency Magistrate for dismissal of the complaint as being without the sanction of the Company Judge and therefore the official liquidator in his official capacity was incompetent to prefer the complaint, being the creation of the statute he could only act within the four corners of the statute.
He possessed only those powers which the statute conferred on him.
This application was dismissed by the Presidency Magistrate on June 13, 1953.
The appellant then applied to the High Court for quashing the criminal proceedings on the ground that the prosecution was ab initio void because of the absence of prior direction judicially given by the High Court under section 237(1) of the Indian Companies Act.
The High Court found against the appellants and discharged the rule.
The learned Chief Justice held that the provisions of section 237(1) are no bar to a prosecution by the liquidator; that under section 237(1) there is nothing in the nature of a judicial proceedings 1265 that it could not be said that the order was not a valid direction under section 237(1).
He said: " There can be no question in the present case that the relevant facts were all placed before the Company Judge, because they are all set out in the report of Adhikary and the affidavits annexed there to to which the order expressly refers and with reference to which the liberty to bring legal proceedings was expressly given.
In view of those circumstances, it is impossible to say that the Company Court had not before it all the facts on which the prosecution is based or that it did not apply its mind to the considerations relevant to section 237(1) ".
He also held that clause (a) of section 179 empowers the liquidator to institute or defend legal proceedings in the name of the company and that it was expressly concerned with the powers of ' the liquidator whereas section 237 dealt with the powers of the Court to give, directions.
P. B. Mukherji J. gave a concurring judgment.
After referring to the history of section 237, he held that under that section the Company Judge can act ex parte and it was not necessary for him to hear a director or an officer of the company com plained against and that direction given under that section was not a condition precedent to a prosecution by the official liquidator nor is it the intention of that section to impinge on the powers of a criminal court under the Code of Criminal Procedure.
Leave to appeal having been refused by the Calcutta High Court, the appellants have come to this Court in pursuance of special leave.
On the application of the official liquidator Bachawat J. an January 15, 1951, made an order which must be taken to be one under section 179.
In this order it was said: And it is further ordered that the said applicant be at liberty to institute or defend any suit or prosecution, or other legal proceedings, civil or criminal in the name and on behalf of the said Bank and to continue all pending suits and execution proceedings by or against the said Bank and for that purpose to engage advocates, Vakils and other.
lawyers and to 1266 pay out of the assets of the said Bank in his hands all costs of and incidental to such suits, prosecutions and/or legal proceedings ".
On July 22, 1952, the official liquidator obtained the order from Bannerji J. which the High Court has held, and in our opinion rightly, to be an order under section 237(1) of the Indian Companies Act.
This order said: " It is ordered that the said applicant be at liberty to take such civil or criminal proceedings as he may think necessary over the report of the said Jasoda Dulal Adhikary read with the affidavits of H. Sen Gupta and Nepal Chandra Adhikary read with the affidavits of H. Sen Gupta and Nepal Chandra Mitra as set out in the said Exhibit " A " ".
The passage already quoted from the judgment of the learned Chief Justice shows that all the relevant facts were before the Company Judge, as they were all set out in the affidavits placed before him.
The complaint was then filed on July 23, 1952.
During the pendency of the complaint the appellants took an appeal against the order of the Company Judge dated July 22, 1952, but it was dismissed on the objection taken by the liquidator that it was an administrative order and not a judicial order.
On August 5, 1953, the official liquidator took out misfeasance proceedings under section 235 of the Companies Act and the appellants then applied to the High Court for quashing the criminal proceedings already started on the ground of commencement of proceedings under section 235.
This application was also heard with the rule which was issued on June 29, 1953, and it was dismissed by the same judgment by which the rule was discharged, i. e., of June 21, 1954.
The general scheme of the Companies Act is that the Court should have complete control of all proceedings in winding up and it was therefore urged that the official liquidator was not authorised to do anything either without the sanction of the Court or without its directions.
Section 179 deals with the powers of official liquidator.
It provides: 1267 The official liquidator shall have power, with the sanction of the court, to do the following things: (a) to institute or defend any suit or prosecution or other legal proceeding, civil or criminal in the name and on behalf of the company;. . . " Under section 180 the Court may provide that the official liquidator may exercise any of the powers given under section 179 without the sanction or intervention of the Court.
Section 183 deals with the exercise and control of liquidator 's powers.
Sub section 3 authorises him to apply to the Court for directions in relation to any particular matter arising in the winding up.
Subsection 4 is a provision under which the official liquidator is entitled to use his own discretion in the administration of the assets of the company and in the distribution amongst the creditors.
Sub section 5 provides: " If any person is aggrieved by any act or decision of the official liquidator, that person may apply to the Court and the Court may confirm, reverse or modify the act or decision complained of, and make such order as it thinks just in the circumstances ".
These provisions show that section 179 deals with the powers of the liquidator.
Under section 235 the Court has the power to assess damages against delinquent directors and the Court may on the application of the liquidator or a creditor or a contributory examine into the conduct of a director and compel him to pay or restore money or property or to contribute such sum to the assets of the company by way of compensation in respect of any misfeasance on his part and this power may be exercised irrespective of the criminal liability of the director.
Section 237 deals with prosecution of delinquent director and the relevant portion of this section is: (1) " If it appears to the Court in the course of a winding up by, or subject to the supervision of, the Court, that any past or present director, manager or other officer, or any member, of the company has been guilty of any offence in relation to the company for which he is criminally liable, the Court may, either on 161 1268 the application of any person interested in the winding up or of its own motion, direct the liquidator either himself to prosecute the offender or to refer the matter to the registrar.
(2) If it appears to the liquidator in the course of a voluntary winding up that any past or present director, manager or other officer, or any member of the company has been guilty of any offence in relation to the company for which he is criminally liable, he shall forthwith report the matter to the registrar and shall furnish to him such information and give to him such access to and facilities for inspecting and taking copies of any documents, being information or documents in the possession or under the control of the liquidator relating to the matter in question, as he may require.
(3) Where any report is made under sub section (2) to the registrar, he may, if he thinks fit, refer the matter to the Central Government for further enquiry, and the Central Government shall thereupon investigate the matter and may, if they think it expedient, apply to the Court for an order conferring on any person designated by the Central Government for the purpose with respect to the company concerned all such powers of investigating the affairs of the company as are provided by this Act in the case of a winding up by the Court.
(4) If on any report to the registrar under sub section
2 it appears to him that the case is not one in which proceedings ought to be taken by him, he shall inform the liquidator accordingly, and thereupon, subject to the previous sanction of the Court, the liquidator may himself take proceedings against the offender.
(5) If it appears to the Court in the course of voluntary winding up that any past or present director, manager or other officer, or any member, of the company has been guilty as aforesaid, and that no report with respect to the matter has been made by the liquidator to the registrar, the Court may, on the application of any person interested in the winding up or of its own motion, direct the liquidator to make such a report, and on a report being made accordingly, 1269 the provisions of this section shall have effect as though,the report has been made in pursuance of the provisions of sub section (2).
(6) If, where any matter is reported or referred to the registrar under this section, he considers that the case is one in which a prosecution ought to be instituted, he shall place the papers before the Advocate General or the public prosecutor and if advised to do so institute proceedings : Provided that no prosecution shall be undertaken without first giving the accused person an opportunity of making a statement in writing to the registrar and of being heard thereon.
. . . . . . . . . . It was this section which the appellants pressed in support of the argument that without the order of the Court the official liquidator cannot lodge a criminal complaint against a past director and if he does so the proceedings will be ab initio void.
All that sub section
(1) requires is that if the Court finds in the course of winding up that any past or present director, etc., has been guilty of any offence in relation to the company the Court may either on the application of the person interested or of its own motion direct the liquidator to prosecute the offender or to refer the matter to the registrar.
In the latter case if the registrar finds that the prosecution ought to be instituted he can do so if advised by the Advocate General or the public prosecutor.
But emphasis was placed by counsel for the appellants on the proviso that no prosecution could be undertaken without first giving the accused person an opportunity of making a statement to the registrar or of being heard and it was urged that if the registrar cannot institute prosecution without first giving an opportunity to the person accused to file an explanation, no directions could be given by the judge unless the persons accused are first allowed an opportunity of giving an explanation.
But this contention must be repelled.
Under section 237 (1) the Court may direct the liquidator to himself prosecute the offender or to refer the matter to the registrar.
Giving an opportunity to the offender before such direction is given by 1270 the Court is not a prerequisite of the Judge making in order under sub section
Under sub section
(6) the registrar is required to give the offender an opportunity to show cause before a prosecution is undertaken.
That is a far step from saying that section 237(1) of the Companies Act requires a Judge to give the offender an opportunity before he gives a direction for prosecution by the liquidator or for reference to the registrar.
It was further urged that under sub s (4) in the case of voluntary liquidation, the liquidator has to proceed after obtaining the sanction of the Court and therefore it was urged that the liquidator cannot institute criminal proceedings without such sanction in the case of winding up by the Court.
Whatever may be the case of a liquidator under voluntary winding up sub section
(1) of section 237 makes no such provision in the case of compulsory liquidation.
Our attention was drawn to some passages from the Indian Companies Act by Sircar & Sen, 1937 Edition.
At page 624 it is stated that the object of the section is to provide against abuses and indiscriminate commencement of prosecutions and also for the first time a provision has been made under this section for prosecutions being conducted as crown prosecutions.
In a passage at page 628 it is stated: " But before the Court can exercise its jurisdiction it must come to the conclusion that in the course of winding up the person intended to be charged under this section has been guilty of an offence in relation to the company for which he is criminally liable.
But such a finding is not to prejudice the accused in any way in his trial.
Per Chitty J. in re Charles Denham & Co. Ltd. L.T. 570 at 571.
" The procedure under section 237(1) as stated in this book at the same page is as follows: " The application should be made on a petition verified by an affidavit in which materials must be set out sufficient to make out a prima facie case.
It is not quite settled as to whether the liquidator should make the application upon notice to any one.
Generally the application should be ex parte, but 1271 the Court may direct notice to be given to any person who is in its opinion entitled to be heard ".
These passages do not support the contention that before a prosecution can be validly instituted against a past director the sanction of the Court is necessary.
Mr. Choudhuri then relied on an observation of Buckley J.
In Re London and Globe Finance Corporation (1) also quoted in Sircar & Sen 's book at page 625.
There the principles guiding the Court in ordering prosecutions have been laid down as follows: " I have next to consider upon what principles I ought to exercise the power given me by section 167 of the Companies Act, 1862, to direct the official receiver to institute and conduct a prosecution at the expense of the assets.
It is obvious that no one legitimately can or ought to institute a criminal prosecution with a view to his personal profit.
Neither should a prosecution be instituted from motives of vengeance against the offender.
The motive of every prosecution ought, to be to inflict punishment upon the criminal for the proper enforcement of the law and for the advantage of the State and with a view to deter others from doing the like ".
This passage does not support the giving of an opportunity to the offender before the Judge can give direction nor do they affect the powers of the liquidator to start a prosecution or the, criminal court to entertain a complaint when filed by the liquidator.
The following passage from Buckley 's Company Law under the commentary under section 334 of the English Companies Act, 1948, which corresponds to section 237 of the Indian Companies Act was then referred to: " Proceedings will accordingly be taken by the Director of Public Prosecutions (or Lord Advocate) or not at all ".
But this is because of the peculiar and express language of section 334 tinder which the Judge can only direct the liquidator to refer the matter to the Director of Public Prosecutions or to Lord Advocate as the case may be.
In the English Act, special provision has been made for England saving the institution of (1) , 733. 1272 criminal proceedings by private prosecutors.
Merely because no such provision has been made in regard to scotland does not affect the argument.
Mr. Choudhuri then relied on certain English cases dealing with the mode of giving directions.
In re Northern Counties Bank Limited(1) the Judge had ordered the liquidator to ascertain by circular the wishes of the creditors and after they had appeared to oppose the starting of the prosecution, it was held (1) that it did not sufficiently appear that the offence had been committed and (2) that as 2/3 of the creditors opposed the application the prosecution should not be ordered as expenses will have to be paid from out of the money belonging to the creditors.
The main question for decision in that case was whether the prosecution should be at the cost and expense of the assets of the company but competency of the liquidator to file the complaint was not in dispute.
Reference 'was then made to Palmer 's Company Precedents, 1952 Edition, Vol.
II, again stating as to when leave to prosecute should be given but the law stated there does not support the case for the appellants.
At page 605 it is stated : " The summons will be ex parte, and should be supported by affidavit showing a strong case for prosecution, and also the extent of the assets and liabilities.
The court is not willing when the assets are small, to sanction proceedings which may swallow up or largely reduce those assets ".
The form at p. 607 does not show that under the English Companies Act when liberty is given to prosecute the person accused is heard.
All that is required is that the court will make its order upon affidavits etc.
filed before it and it can also order that the costs and charges incurred by the liquidator shall be paid out of the assets of the company.
It was next contended that although the language of section 237 was not in the negative form still the effect of the words was that no prosecution could be instituted without the sanction of the Court being obtained by the liquidator.
In support of the submission counsel (1) 1273 relied on The Queen vs Cubitt (1) which was a case under the Sea Fisheries Act which created certain offences and by section 11 provided: "The provisions of this Act. . . shall be enforced by sea fishery officers ", who are defined by that section and it was held that the effect of the words was that no one except the sea fishery officer could prosecute an offence under the Act.
But there are no such words of limitation in section 237.
In Taylor vs Taylor(2) the words of the statute were "entitled to the possession or the receipt of the rents and profits" and it was held that the order under the statute could only be made upon a petition which was within the words above quoted and if there was no such person no order could be made but that again was decided on the peculiar language of the statute.
Counsel also relied on Nazir Ahmad vs Crown (3) where it was held that if the statute authorises the doing of an act in one way then it had to be done in that way or not at all.
The argument of Mr. Choudhuri really comes to this that the complaint filed on behalf of the official liquidator was incompetent in the absence of a direction under section 237 or without complying with the procedure laid down in that section.
Section 237(1) does not lay down any procedure for the giving of directions and the provisions in regard to the action taken by the registrar do not have any relevancy to what the court should do before it gives directions.
English cases that have been cited do not go to the extent of saying that no prosecution can be instituted without the sanction of the court.
They deal with another subject and that is the circumstances in which the Judge would give directions for prosecution and would sanction the assets of the company to be expanded in prosecution.
Besides nowhere has it been stated that the court cannot give directions without first hearing the persons accused or that the directions of the Judge are a condition precedent to the lawful institution of criminal proceedings by the liquidator.
(1) (2) (3) (1936) L.R. 63 I.A. 372, 381. 1274 On the other hand it has been held that under section 179 of the Indian Companies Act no sanction is required for commencing a prosecution.
In Jaswantrai Manilal Akhaney vs The State of Bombay (1) at the instance of the official liquidator a report was lodged with the police against the Managing Director of a Bank and the police submitted a charge sheet to the Magistrate.
It was observed by Sinha J. at page 502: " In terms the section laws down the powers of the official liquidator.
Such a Liquidator has to function under the directions of the court which is in charge of the liquidation proceedings.
One of his powers is to institute prosecutions in the name and on behalf of the company under liquidation with the sanction of the court.
This section does not purport to impose any limitations on the powers of a criminal court to entertain a criminal prosecution launched in the ordinary course under the provisions of the Code of Criminal Procedure ".
It was also pointed out in this judgment that section 179 contains no words corresponding to the language of Drug Control Order, 1943, which was held to be a condition precedent for instituting prosecution in the case of Basdeo Aggarwalla vs King Emperor (2) nor are there any prohibitory words like those that are contained in sections 196 and 197 of the Criminal Procedure Code.
In the former case no prosecution could be instituted without the previous sanction of the Provincial Government and the latter provides that " no court shall take cognizance. . . .
There are two cases decided by two Indian High Courts which support the submission of the respondents ' counsel.
In Emperor vs Bishan Sahai (3) it was held that the Companies Act nowhere provides that without the directions of a Judge no criminal prosecution can be instituted.
In Mrityunjoy Chakravarti vs Provot Kumar Pal(4), it was held that neither section 179 nor section 237 indicates that if the liquidator takes action without a (1) ; (2) (3) I.L.R. (1937) All.
(4) A.I.R. 1953 Cal.
1275 direction of the Court this action would be illegal or invalid or it would invalidate a prosecution.
It would thus appear that both on the language of section 237(1) as well as on precedent the complaint made by the liquidator against the appellants suffers from no such infirmity as to make the proceedings null and void.
The section contains no such words which indicate that such a prosecution cannot be instituted by a liquidator without the sanction of the Judge or that the Court cannot take cognizance of a complaint without such sanction or direction.
Section 179 as the learned Chief Justice of Calcutta High Court has rightly pointed out, deals with the powers of liquidators to institute or defend proceedings with the sanction of the Court and section 237(1) deals with the powers of the Court to give directions for prosecution of delinquent directors, etc.
It was further urged on behalf of the respondents that in the case before us there was a proper direction under section 237(1).
The judgment of the High Court shows that before the learned Judge gave a direction on July 22, 1952, there were before him proper materials and, therefore, his sanction was perfectly valid, legal and proper.
Before this order made by Bannerji J. there was an order of Bachawat J. dated January 15, 1951, under section 179 and, therefore, when the liquidator authorised his Assistant, respondent No. 1 to institute the proceedings he was entitled to do so.
As we have said above even in the absence of such directions the legality of the criminal proceedings instituted would not be affected.
Nothing that we have said in this judgment must be taken to be an expression of opinion which in any way affects the control by the Judge of proceedings in winding up or over the liquidators.
We would, therefore, dismiss this appeal.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The Official Liquidator got a complaint under sections 120 B, 406, 467 and 477A, 'Indian Penal Code filed before the Presidency Magistrate against the appellants one of whom was a past director and the other the Managing Director of the Bank of Commerce Ltd., which was in compulsory liquidation.
The appellants applied to the Presidency Magistrate for dismissal of tile complaint on the ground that the Official Liquidator was incompetent to prefer the complaint as there was no sanction of the Company judge.
This was dismissed.
The appellants then applied to the High Court for quashing the criminal proceedings on the ground that the prosecution was ab initio void because of the absence of a prior direction judicially given by the High Court under section 237(1) of the Indian Companies Act.
The High Court rejected the application.
Held, that a direction of the Court under section 237(1) of the Indian Companies Act was not a condition precedent to the prosecution of the appellants by the Official Liquidator.
In fact, a valid and proper direction had been given by the Court under section 237(1) to the Official Liquidator for the prosecution of the appellants.
In giving a direction under this section the Court could act ex parte and it was not necessary to give to the appellants any opportunity of being heard.
Section I79 Of the Companies Act deals with the powers of liquidators to institute or defend legal proceedings with the sanction of the Court and section 239(1) deals with the powers of the Court to give directions for prosecution of delinquent directors, etc.
In the present case, the Court had made an order under section I79 giving liberty to the Official Liquidator to institute or defend legal proceedings, and the Official Liquidator was entitled to lodge the complaint against the appellants even without a direction under section 237(1).


judgement:
it Petition (Civil) No. 10 18 of 1989.
(Under Article 32 of the Constitution of India) Ranjit Kumar for the Petitioner.
A.D. Singh, (N.P.) R.B. Misra, and Ms. A Subhashini, (N.P.) for the Respondents.
The Order of the Court was delivered by MISRA, J. This is an application under Article 32 of the Constitution and the President of the National Council of Bio Medical Scientists is the petitioner.
The reliefs asked for are on the allegation that the Group 'A ' scientists of the Ministry of Health and Family Welfare who are the mem bers of the Council, are being discriminatingly treated; they have not been given any promotional benefits and, therefore, there is a large scale stagnation in the service.
It has been alleged that the Group 'A ' scientists are re cruited through the Union Public Service Commission.
These scientists possess a Master Degree in the relevant disci plines and 3 years ' experience to entitle them to be re cruited.
It has been indicated in a chart filed along with the Writ Petition that the total posts in this category are 243 including post of Drug Controller of India.
The promo tional posts available are filled up by direct recruitment and open competition and there is no promotional channel provided.
Similar scientists in other Ministries, such as Ministry of Science and Technology, Ministry of Defence, Ministry of Environment and Ministry of Oceanography are recruited in terms of rules made under the proviso to Arti cle 309 of the Constitution and for their Group 'A ' scien tific and technical officers, promotional avenues are avail able.
The petition further alleges that on their representa tions from time to 179 time, meetings have been held but decisions taken in such meetings have not been given effect to and, therefore, all the representations have gone unheeded.
Particular reference has been made to the Minutes of a meeting held on 15.5.
1989, where Shri Basudeven, Joint Secretary in the Ministry of Health and Family Welfare presided; several officers from different wings of the Ministry attended and representatives of the petitioner 's Council participated.
It has been al leged that though several demands were pressed by the repre sentatives of the Council, only a few were considered and yet there was no follow up action for their implementation.
Notice was issued to the Union of India in the Minis tries of Health, Human Resources, Science and Technology and Bio Technology and the notice indicated that the matter would be taken up for final disposal.
Though no return has been filed to the Rule Nisi, counsel appeared for the re spondents and upon appropriate instructions, participated in the hearing of the matter.
Annexure P 1 indicates the institutions located in different parts of the country where the posts of 'A ' Group scientists who are members of the Council work.
Their total number is 243 and this is not disputed.
The petitioner has placed on record the rules framed in exercise of powers under proviso to Article 309 of the Constitution in the Ministry of Science and Technology, covering Group 'A ' scientists.
Rule 13 thereof provides avenues for promotion.
This also is not disputed.
Annexure P 3 is a tabuler state ment prepared by the petitioner, showing the disparities in the service conditions between the BioMedical scientists and other similar scientists and the discrimination that Group 'A ' specialists/scientists under the establishment of Direc tor General of Health Services suffer.
The pay scale for different categories of Group 'A ' scientists in the non medical posts and of doctors in the medical posts have been separately shown.
It has been pointed out therein that while there is a difference in the pay scale in the establishment of Director General of Health Services, there is no dispari ty in respect of similar posts in the Indian Council of Medical Research (ICMR) or in the All India Institute of Medical Sciences, Delhi or the Post Graduate Institute at Chandigarh.
It has been further pointed out in the said chart that various kinds of allowances are admissible to the doctors in the medical wing, such as book allowance, higher degree allowance, risk allowance and conveyance allowance in the establishment of Director General of Health Services while the non medical category manned by the 'A ' Group scientists is denied all these allowances.
It has also been alleged that while the medical category doctors get non practising allowance the benefit of 180 such allowance is not extended to the non medical category.
Such discrimination, according to the petitioner, is not noticed in the I.C.M.R. or in the two Institute at Delhi and Chandigarh respectively.
The 4th Pay Commission in Chapter 29, paragraph 29.8 recommended: "The question of granting incentive to offi cers and staff who acquire higher qualifica tion has also engaged our attention.
Railways have suggested a scheme for giving such incen tives in the context of the need for updating the skills of the employees for the more efficient discharge of their duties in these days when modernisation and adoption of ad vanced technology is being undertaken in different fields of railway working.
Sugges tions have also been made for grant of post graduate allowance to veterinary surgeons and special allowances to EDP personnel.
Some such schemes are in existence in the defence serv ices.
We suggest that some incentive should be given to employees who acquire qualifications which are useful for their work and contribute to their efficiency." On 15th of December, 1986, the Office Memorandum in the Ministry of Personnel, Public Grievances and Pension indi cated that this recommendation of the Pay Commission has been accepted by the Government.
Undoubtedly, in regard to the three other allowances, namely, book allowance, risk allowance and conveyance allow ance, there is no scope for discrimination between Group 'A ' scientists in non medical and medical wings.
In fact, at the hearing of the writ petition, respondent 's counsel found it difficult to support the prevailing position.
We are of the opinion that these four kinds of allowances, which are admissible to the medical doctors are also admissible to the Group 'A ' scientists under the non medical category employed in the establishment of Director General of Health Services.
The claim for nonpractising allowance stands on a somewhat different footing and we do not think on the present state of the record of this proceeding, we can come to a definite conclusion that the Group 'A ' scientists in the non medical category would be also entitled to such allowance.
We, however, leave the question open and Government at their level in the appropriate Ministry would examine tenability of this claim as and when raised.
It has been canvassed by petitioner 's counsel at the hearing that there is no justi fication for the disparity in the scale of pay between the two categories of officers.
Government counsel has taken 181 the stand that the qualifications of officers in the two wings are different and the difference in the pay scales has always existed.
It is difficult for us on the material available to take any final view of the matter but the respondent should examine tenability of the claim to equal scales of pay.
This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective.
Promotion is thus a normal inci dence of service.
There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non medical 'A ' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage.
In a welfare State, it is necessary that there should be an efficient public serv ice and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers.
It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A ' category scien tists in the non medical wing of the Directorate.
This Writ Petition is allowed and the following direc tions are issued: 1.
Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropri ate rules, inter alia, providing suitable promotional avenue for the 'A ' Group scien tists in the non medical wing of the estab lishment of Director General of Health Serv ices; 2.
These 'A ' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. 1.4.1989; 3.
Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.
There shall be no directions for costs.
T.N.A. Petition allowed.

summary/full:
The petitioner, group 'A ' scientist belonging to the non medical wing of the Directorate General of Health Serv ices, filed a wit petition in this Court seeking parity in pay scales and allowances with his counter part in the medical wing.
It was contended that group 'A ' scientists are treated discriminately vis a vis their counter parts in other Ministries, because the former are not given any promotional benefits while the latter are provided with avenues for promotion.
Allowing the writ petition, this Court, HELD: 1.
Provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective.
Promotion is thus a normal incidence of service.
There is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non medical 'A ' group scientists in the establishment of Directorate General of Health Serv ices would be deprived of such advantage.
[181B] 2.
In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to pro vide promotional avenue for this category of officers, [181 C] 3.
On the model of rules framed by the Ministry of Science and Technology, appropriate rules should be framed providing promotional avenue for the 'A ' category scientists in the non medical wing of the Directorate.
[181D] 178 4. 'A ' Group scientists shall be entitled to book allow ance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the Medical wing in the Directorate.
[18IF] 5.
Government shall examine the tenability of the claim of Group 'A ' scientists for equal pay scales with their counterparts in medical wing.
[181G]


judgement:
ivil Appeal No. 4599 of 1989.
From the Judgment and order dated 16.9.1988 of the Punjab and Haryana High Court in Review Application 22 CII of 1988 in Civil Revision No. 2439 of 1980.
S.P. Goel, G.B. Singh and K.K. Mohan for the Appellant.
S.M. Ashri for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
Special leave granted.
This appeal under Article 136 arises against the order dated Sept. 16, 1988 of the High Court of Punjab & Haryana refusing to review the order dated August 11, 1988 made in Civil Revision No. 2439/80 on its file.
The facts leading to the decision are that the respondent Govind Ram, the father of the respondents/landlord laid the suit No. 118/77 (ini tially numbered as O.S. No. 276/75) on the file of Sr.
Sub Judge for ejectment and recovery of arrears of rent and damages for use and occupation of the shop in Gurgaon, let out to the appellant/tenant.
The suit was originally laid in the Court of Sub 152 Judge, IIIrd Class, Gurgaon, which was transferred later to the Sr.
Sub Judge, Gurgaon, which was decreed ex parte on October 20, 1977.
The application under Order 9 Rule 13 C.P.C. to set aside the ex parte decree was dismissed on January 10, 1979, and was confirmed on appeal on August 17, 1979 and in revision by the High Court on October 15, 1979.
When the landlord laid the execution application for eject ment the appellant objected under section 47 of C.P.C. contending that the decree of the Civil Court is a nullity as the premises in question is governed by the Haryana Urban (Control of Rent & Eviction) Act 11 of 1973, for short 'the Act '.
The Controller under the Act is the competent forum regarding claims for ejectment on fulfilment of any of the conditions enumerated under Section 13 thereof.
The Civil Court is divested of jurisdiction to take cognisance and pass a decree for ejectment of the appellant.
That objection was overruled and on further revision the High Court dis missed the revision by order dated March 19, 1980.
Simulta neously he also filed Writ Petition under Article 227 which was dismissed on September 30, 1988.
This appeal is directed against that order of dismissal.
The contention raised by Shri S.P. Goel, the learned Sr. counsel for the appellant is that by operation of Section 13 of the Act the only authority to pass a decree of ejectment of the appellant tenant is the Controller under the Act and by necessary implication the jurisdiction of the Civil Court is ousted.
The Civil Court lacked inherent jurisdiction to take cognisance of the cause and to pass a decree.
The decree is thus a nullity.
The challenge to a decree on the ground of nullity can be raised at any stage and even in execution.
The courts below have committed manifest error of law in not considering the legal question in its proper perspective.
The shop consists of the original building belonging to the landlord, but a small part thereof in the frontside was constructed on municipal land.
Tenancy of the building is governed by the Special Act and, therefore, the decree of the Civil Court is a nullity and is inexecutable.
Shri Ashri, the learned counsel for the respondents refuted this contention.
Firstly he argued that the leave applica tion is barred by limitation.
Secondly, he contended that the appellant had raised the plea of want of jurisdiction at the trial.
Though he remained ex parte, the trial court considered the objection under issue Nos. 4 and 5 and over ruled the objection.
The decree became final; thereby the decree operates as res judicata.
He also further contends that the Act does not apply to the building in question.
Under Section 3, municipal land is exempted from the provi sions of the Act and thereby the only forum to lay the action is the Civil Court.
The Civil Court having jurisdic tion has validly granted the 153 decree.
The decree having been allowed to become final, it is not open to the appellant to ask the executing court to go behind the decree The question that emerges is whether the Civil Court lacked inherent jurisdiction to entertain the suit for ejectment of the appellant tenant and the decree so passed is a nullity.
The Act was enacted with the object of con trolling the increase of rent of buildings and rented lands situated within the limits of urban areas and "the eviction of the tenants therefrom".
Section 2(a) defines 'building ' which means any building or a part of a building let for any purpose whether being actually used for that purpose or not, including any land . . . . appurtenant to such building . . . . but does not include a room in a hotel, hostel or boarding house.
Section 2(b) defines 'Controller ' as any person who is appointed by the State Government to perform the functions of a Controller under the Act.
Landlord has been defined under Section 2(c) and Section 2(f) defines rented lands to mean any land let separately for the purpose of being used principally for business or trade. 'Tenant ' has been defined under Section 2(h).
Section 3 authorises the State Government by notifica tion to exempt any particular building or rented land or any class of building or rented lands from the application of any or all the provisions of the Act.
Section 13 contains the provisions for eviction of tenants, Sub section
(1) thereof reads: "Eviction of tenants (1) A tenant in posses sion of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of this section.
" The other provisions are not necessary.
The sole ground raised by the landlord for eviction was that the appellant had committed default in the payment of rent and thereby had became liable for ejectment.
Accordingly, he issued a notice under Section 106 of the Transfer of Property Act determin ing the tenancy and laid this suit.
Section 13 gives the right to the landlord to seek eviction of the tenant for default in the payment of rent.
The Act provides the protec tion of continued tenancy and remedy of ejectment for breach of covenants in the lease and other statutory grounds as provided.
It provides that the remedy and the forum and the decree of ejectment passed by the Controller or the appel late authority or the revisional authority or confirmation thereof either in appeal or revision is final under the Act.
Thereby the exclusive jurisdiction to take cognisance of the cause of action for ejectment of the tenant from a building or rented land situated in urban areas is governed by the provisions of the Act and is 154 exclusively to be dealt with under Section 13 of the Act.
By necessary implication the jurisdiction of the Civil Court under Section 9 of C.P.C. is excluded.
It is undoubtedly true that open land is a part of the frontage of the shop and belonged to the municipality which the landlord had taken on lease from the Municipality.
As regards the munici pal land, the landlord was a lessee of the Municipal Commit tee.
But on construction of the building covering a portion of the municipal land the landlord became landlord and the appellant his tenant for the purposes of the Act.
This view was held by the full Bench of the Punjab and Haryana High Court in Hari Parshad Gupta vs Jitender Kumar Kaushik, [1982] Vol.
84, Punjab Law Reporter, 150.
We agree with the view.
Thereby though there is a notification issued by the State Government exempting the lands belonging to Gurgaon Municipality from the provisions of the Act, the building of the respondent does not get exempted from the provisions of the Act.
It is the finding of the forums below that the shop in question stands mainly on the land of the landlord and a small portion is located on municipal land.
Therefore, we are of the view that the building was governed by the provi sions of the Act and the exemption accorded by the Govern ment under Section 3 was not attracted to the premises.
In Sadhu Singh vs District Board, Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol.
64, 1 the question was whether to the reconstructed building governed by the provisions of East Punjab Urban Rent Restriction Act the exemption under Section 3 applied.
It was held to be so by the Division Bench.
But the present facts are different.
In Barrachlough vs Brown, the House of Lords held that when a special statute gave a right and also provided a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction.
In Doe vs Bridges, ; at 859 the famous and oft quoted words of Lord Tenterdan, occur: "Where an Act creates an obligation and en forces the performance in a specified manner, we take it to be a general rule that perform ance cannot be enforced in any other manner." This statement of law was approved not only by the House of Lords in several cases, but also by this Court in Premier Automobiles vs K.S. Wadke, ; where this Court was called upon to consider whether the Civil Court can decide a dispute squarely coming 155 within the provisions of the Industrial Disputes Act.
While considering that question, this Court laid down four propo sitions and third of them is relevant for consideration here.
It is as follows: "(3) If the industrial dispute relates to the enforcement of a fight or an obligation creat ed under the Act, then the only remedy avail able to the suitor is to get an adjudication under the Act." Thus on construction of relevant provisions of the Act and in the light of the position in law it must be held that the provisions of Section 13 of the Act applies to the building leased out to the appellant by the landlord and the Controller was the competent authority to pass a decree of ejectment against the appellant and the Civil Court lacked inherent jurisdiction to take cognisance of the cause and to pass a decree of ejectment therein.
The next question is whether the impugned decree is a nullity and whether the plea can be raised in execution and further whether the decree in the suit does not operate as res judicata.
In Kiran Singh & Ors.
vs Chaman Paswan & Ors.
, ; = AIR 1954 SC 430 the facts were that the appellant had undervalued the suit at Rs.2,950 and laid it in the court of the Subordinate Judge, Monghyr for recovery of possession of the suit lands and mesne profits.
The suit was dismissed and on appeal it was confirmed.
In the second appeal in the High Court the Registry raised the objection as to valuation under Section 11.
The value of the appeal was fixed at Rs.9,980.
A contention then was raised by the plaintiff in the High Court that on account of the valuation fixed by the High Court the appeal against the decree of the court of the Subordinate Judge did not lie to the District Court, but to the High Court and on that account the decree of the Dis trict Court was a nullity.
Alternatively, it was contended that it caused prejudice to the appellant.
In considering that contention at page 121, a four Judge Bench of this Court speaking through Vankatarama Ayyar, J. held that: "It is a fundamental principle well estab lished that a decree passed by a Court without jurisdiction is a nullity, and that its inva lidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
A defect of jurisdic tion, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the 156 action, strikes at the every authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities.
" On merits it was held that since the appellant himself had invoked the jurisdiction of the Civil Court with under valuation, the objection as to jurisdiction was not avail able by operation of Section 99 of the Code and as to the territorial jurisdiction he was precluded by operation of Section 21 of C.P.C.; and on such premise it was held that the decree of the District Court could not be treated to be a nullity and person who invoked the jurisdiction cannot plead prejudice to himself by his own act.
This Court has held that it is a well established prin ciple that a decree passed by a court without jurisdiction is a nullity and the plea can be set up whenever and wherev er the decree is sought to be enforced or relied upon, and even at the stage of execution or in collateral proceedings.
In the case of Ferozi Lal Jain vs Man Mal & Anr., AIR 1979 SC 794 the facts were that the appellant was the owner of a shop.
One of the covenants under the lease was that the lessee respondent should not sub let the shop.
On the ground that the respondent had sub let the shop, a suit was laid for eviction under Section 13 of the Delhi and Ajmer Rent Control Act, 1952.
The matter was compromised and a compro mise decree was passed.
Twice time was given for delivery of the vacant possession by the respondent.
On his failure to deliver vacant possession the appellant filed execution to recover possession.
The tenant raised the objection that unless any one of the grounds prescribed under Section 13 of the Rent Control Act was satisfied, the decree even on compromise was a nullity, and therefore, he could not be evicted.
This Court held that the order made did not show that it was satisfied that the sub letting complained of had taken place, nor was there any other material on record to show that it was so satisfied.
It is clear from the record that the Court had proceeded solely on the basis of the compromise arrived at between the parties.
That being so there was hardly any doubt that the Court was not competent to pass the impugned decree.
Hence the decree under execu tion must be held to be a nullity.
On that basis it was held that the objection could be 157 raised even at the execution stage.
Ultimately, the decree was held to be void.
In Bahadur Singh vs Muni Subrat Dass, the decree under execution was made on the basis of an award and it was held that the decree was passed in contravention of section 13(1) of the Rent Control Act.
Thereby the decree was held to be void and hence no execution could be levied on the basis of the void decree.
A similar view was also taken by this Court in Smt.
Kaushalya Devi & Ors.
vs K.L. Bansal, AIR 1970 SC 838.
This was also a case under the Delhi and Ajmer Rent Control Act and was on the basis of a compromise.
It was held that the decree passed on the basis of the award was in contravention of Section 13(1) of the Act as the Court had passed the decree without satisfying itself that any good ground of eviction existed.
Therefore, the decree for delivery of possession was held to be a nullity and could not be executed.
This is also a decision by a Bench of three Judges speaking through Sikri, J. as he then was.
In Chandrika Misir & Anr.
vs Bhaiya Lal, ; Palekar J. speaking for a Bench of two Judges held that the decree passed by the Civil Court in relation to matters governed by U.P. Zamindari Abolition and Land Reforms Rules, 1952 for possession was a nullity and in the appeal it was for the first time permitted to be raised in this Court and the decree was declared to be a nullity.
In Ledgard vs Bull, [1886] Law Report, 13 AC, 134 the Privy Council laid down that where the original Court in a suit was inherently lacking jurisdiction, and was incompe tent to try the same, on its transfer by consent of parties, to a Court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction.
In Bartan vs Fincham, [1921] 2 Kings Bench Division, 291 at 299 it was held that: "Parties cannot by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have The Court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the Act.
" In Peachery Property Corporation vs Robinson, [1966] 2 All Eng.
158 Report 981 at 983 Winn, Lord J. took the same view.
In Choudari Rama (dead) per L.R. Choudhary Ganapathi vs Qureshi Bee, [1983] 2 Andhra Law Times 133 one of us Ramas wamy, J. was called upon to consider the question on a set of similar facts.
Therein the petitioner who died subse quently was protected under A.P. (Telangana Area) Tenancy and Agricultural Holdings) Act, 1950.
The protected tenant was given possession in exercise of statutory power under Section 38 A of that Act.
That was done during the pendency of the suit for partition between the co sharers.
The tenant was impleaded co nominee defendant to the suit.
A prelimi nary decree for partition and for possession was passed.
A final decree followed.
The decree became final and execution was levied for possession.
Objection was taken that since the tenant was a protected tenant under the Act, the decree was a nullity and could not be executed against the legal representatives.
After considering the scope of relevant provisions of the Act, it was held that the Civil Court cannot go into the legality or correctness of the Exhibit B I issued by the Tehsildar.
The revenue authorities consti tuted under that Act were competent to go into the validity thereof.
Civil Court inherently lacked jurisdiction and the decree of ejectment of the protected tenant from the lands covered by the protected tenancy was a nullity because of the provisions of Chapter IV of the Act.
The plea can be set up even at the stage of execution, as was rightly done in that case.
Otherwise it would have the effect of nullifying the operation of the statutory provisions in Chapter IV of the Act and deprived the protected tenant of his vested interest in the land created in his favour under the tenancy certificate (exhibit B I).
It was also held in paragraph 64 that "Its validity can be assailed in the execution proceedings.
" We approve the view of the High Court.
In Mathura Prasad Bajoo Jaiswal & Ors.
vs Dossibai N.B. Jeejeebhey; , the Bench consisting of Shah, CJ., Hegde and Grover, JJ. was called upon to consider whether a decree passed without jurisdiction operates res judicata.
The facts therein were that the respondent leased out the land for construction of a building to the appel lant, which was duly constructed.
The tenant applied for fixation of the standard rent.
The Civil Court rejected the prayer holding that the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 does not apply to the open land let out for construction.
But later the High Court reversed that view in another decision and held that the Act applied to the open land leased out.
Relying upon that judgment, an application was again filed for fixation of the standard rent of the 159 premises.
Objection was raised that the earlier rejection operated as res judicata.
In that context, in negating the contention, this Court held that the doctrine of res judica ta belongs to the domain of procedure.
It cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpreta tion of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact relating to the right in dispute between the parties has been determined thereby.
A decision of a competent Court on a matter in issue may be res judicata in other proceedings between the same parties.
The matter in issue may be an issue of fact.
The fact decid ed by a competent Court is final determination between the parties and cannot be re opened between them in another proceeding.
The previous decision on a matter in issue alone is res judicata.
The reasons for the decision are not res judicata.
A matter in issue between the parties is the right claimed by one party and denied by the other.
The claim of right from its very nature depends upon proof of facts and application of the relevant law thereto.
A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue.
When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties.
A previous decision of a competent Court on facts which are the founda tion of the right and the relevant law applicable to the determination of the transactions which is the source of the right is res judicata.
A previous decision on a matter in issue is a composite decision; the decision of law cannot be dissociated from the decision on facts on which the right is founded.
A decision on an issue of law will be res judicata in a subsequent proceeding if it be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier suit nor when the earlier decision declares valid a transac tion which is prohibited by law: "A question of jurisdiction of the Court, or of procedure, or a pure question of law unre lated to the right of the parties to a previ ous suit, is not res judicata in the subse quent suit.
Rankin, CJ., observed in Tarini Charan Bhattacherjee 's I.L.R. case: "The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and 160 the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory or pre cluding the parties from reopening or recon testing that which has been finally decided." "A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court.
If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata.
Similarly, by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litiga tion is the same or otherwise." (Emphasis supplied) In that case it was held that since it relates to the jurisdiction of the Court as per law declared by the legis lature, it does not operate as res judicata.
In Vasudev Dhanjibhai Modi vs Rajabhai Abdul Rehman & Ors., a Bench of three Judges of this Court consisting of Shah, J., as he then was, Hegde and Grover, JJ. was considering the question of nullity of a decree.
The facts therein were that the appellant, owner of the plot of land, leased out the same to the respondent at an annual rental of Rs.411.
The suit was dismissed and on appeal it was reversed and suit was decreed.
On revision it was con firmed by the High Court.
Special leave petition filed in this Court was also dismissed.
In the execution the conten tion was raised that the Small Causes Court had no jurisdic tion to entertain the suit.
It was contended that the decree was a nullity on the ground that Bombay Rents Hotel and Lodging House Rates (Control) Act 57 of 1947 applied to the facts in that case.
In that context Shah, J., as he then was, speaking for the Court held that challenge to a decree which is a nullity can be raised at any time, but the Court executing the decree cannot go behind the decree between the parties or on their representation it cannot entertain any objection that the decree was incorrect in law or on facts, unless it is set aside by an appropriate proceeding in appeal or revision.
A decree even if it be erroneous is still binding between the parties.
In that context it was held that the question whether the Court of Small Causes had jurisdiction to entertain the Suit depended upon 161 the interpretation of the terms of the agreement of lease, and the use to which the land was put at the date of the grant of the lease.
These questions cannot be permitted to be raised in an execution proceedings so as to displace the jurisdiction of the Court which passed the decree.
It was further held that for the purpose of determining whether the Court which passed the decree had jurisdiction to try the suit, it is necessary to determine facts relevant to the issue on which the question depends, and the objection does not appear on the face of the record, the executing Court cannot enter upon an enquiry into those facts.
It is seen that on the facts in that case it is for the first time the executing Court is to adjudicate upon the terms of the lease whether the Court of Small Causes had jurisdiction to enter tain that suit.
It is not a case of interpretation of the statutory provisions or inherent lack of jurisdiction.
It is already seen that in fact for the first time this Court in Chandrika Misir 's case (supra) had to go into the statutory provisions though no case in that regard had been set up in the courts below and held that the Civil Court lacked inher ent jurisdiction to pass the decree.
Therefore, the ratio in this case is not in conflict with the view taken by this Court.
It is no doubt true that in Seth Hiralal Patni vs Sri Kali Nath, ; the facts were that the suit was instituted on the original side of the Bombay High Court against the appellant for recovery of certain arrears out of transactions taking place at Agra.
The dispute was referred to arbitration.
The arbitrator gave his award in favour of the respondent which was upheld on appeal by the High Court.
In execution proceedings an objection was raised by the appellant that the Bombay High Court has no jurisdiction to entertain the suit to make the award a decree of the Court as no part of the cause of action had arisen within its territorial jurisdiction.
Therefore, the decree was without jurisdiction.
It was held that since the parties had agreed to refer the matter to arbitration through Court, which had jurisdiction, he would be deemed to have waived the objec tion as to the territorial jurisdiction of the Court.
There fore, it is not a nullity and the appellant was held to be estopped from challenging the jurisdiction of the Bombay High Court.
The ratio therein does not apply to the facts of this case.
The case of Phool Chand Sharma & Ors.
vs Chandra Shanker Pathak & Ors., 828 also does not help the respondent.
It was a case where the suit was decreed and possession was taken thereunder.
On appeal by the respondent it was dismissed.
On Second Appeal before the Board of Revenue the matter was com 162 promised, whereunder Ramprasad was recognised as a tenant of the land in dispute and the order of eviction was thus nullified.
When he made an application under Sec.
144 C.P.C. for restitution it was resisted by the tenants subsequently inducted on the ground that the respondent was inducted as tenant by the decreeholder, and the decree does not bind them.
This was upheld by the trial court and on appeal.
A writ petition was also dismissed on merits.
The decree became final.
The order of the High Court under article 227 became final.
Then against the order of the Board of Revenue an appeal under article 136 was filed in this Court.
A prelimi nary objection was raised that the decision of the High Court under article 227 operated as res judicata.
In that context it was held by this Court that the appeal was barred by res judicata as the decision of the High Court was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings.
The facts are clearly distinguishable.
The case of Mohanlal Goenka vs Benoy Krishna Mukherjee & Ors., ; is also of little assistance to the respondent.
The decree passed by the Calcutta High Court on its original side was transferred for execution to the Court of Subordinate Judge of Asansol with proper certified copy of the decree and order of transmission.
The execution application was dismissed for default and a certificate was sent under Sec.
41 C.P.C. stating that the execution case was dismissed for default without transmitting the decree or the covering letter sent by the High Court.
The decree holder again applied for execution.
It was accordingly executed.
Then an application to set aside the sale was made under Order 21 Rule 90 C.P.C. on the ground that the decree is a nullity and the Court had no jurisdiction to execute the decree.
While negating the contention it was held that since the decree sent was not transmitted it would be re garded as a fresh application for execution and, therefore, the executing Court had jurisdiction and the decree was not a nullity.
That case also is not one of inherent lack of jurisdiction.
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 judica ta 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 goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction.
It is a corum non 163 judice.
A decree passed by such a Court is a nullity and is non est.
Its validity 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.
If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party.
They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits.
The doctrine of res judicata under Sec.
11 C.P.C. is founded on public policy.
An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them.
Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them.
But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them.
The reason is obvi ous; a pure question of a law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue.
The principle of res judicata is a facet of procedure but not of substantive law.
The decision on an issue of law founded on fact in issue would operate as res judicata.
But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibi tion by law it does not operate as res judicata.
Thus a question of jurisdiction of a Court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit.
A question relating to jurisdiction of a Court or interpretation of provisions of a statute cannot be deemed to have been finally deter mined by an erroneous decision of a Court.
Therefore, the doctrine of res judicata does not apply to a case of decree of nullity.
If the Court inherently lacks jurisdiction consent cannot confer jurisdiction.
Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the Court inherently lacks jurisdiction.
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 164 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 there under is a nullity, and does not bind the appellant.
There fore, 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 appel lant cannot raise the same point once again at the execu tion.
It is seen from the dates mentioned that there is no delay in filing the leave application.
The leave application was filed within the limitation from the date of original order of dismissal of the revision or on a later date dis missing the review application.
It is true that the writ petition was filed against the order in revision, but it does not preclude the appellant to contest its invalidity in the appeal under article 136.
The decree was executed pending the special leave petition.
This Court would relieve the party from injustice in exercise of power under article 136 of the Constitution when this Court notice grave miscarriage of justice.
It is always open to the appellant to take aid of Sec.
144 C.P.C. 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.
Y. Lal Appeal allowed.

summary/full:
The respondent had filed a suit before the Senior Sub Judge, against the appellant for ejectment and recovery of arrears of rent and damages for use and occupation of the shop, let out to him.
The suit was decreed ex parte on October 20, 1977.
The application under Order 9, Rule 13.
C.P.C. to set aside the ex parte decree was dismissed on January 10, 1979 and was confirmed on appeal on August 7, 1979 and later in revision by the High Court.
When the respondent landlord took out execution proceed ings for ejectment of the appellant tenant, he objected under Section 47 of Code of Civil Procedure contending that the decree passed by the civil court was a nullity, as the premises in question was governed by the Haryana Urban (Control of Rent and Eviction) Act 11 of 1973.
According to him the Controller under the Act was the competent authority regarding claims for ejectment and by necessary implication, the civil Court was divested of jurisdiction to take cogni sance and pass a decree for ejectment.
That objection was overruled and further revision to the High Court also failed.
Simultaneously the appellant had also filed a writ petition under article 227 of the Constitution which was also dismissed.
Hence this appeal by the appellant tenant by special leave.
Allowing the appeal, this Court, HELD: 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 150 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.
[162G] A decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise of jurisdiction, lacks inherent jurisdiction.
It is a coram non judice.
A decree passed by such a court is a nullity and is non est.
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.
[162H; 163A] (See Kiran Singh & Ors.
vs Chaman Paswan & Ors., ; Ferozi Lal Jain vs Man Mal & Anr., AIR 1979 SC 794: Bahadur Singh vs Muni Subrat Dass, ; Smt.
Kaushalya Devi & Ors.
vs K.L. Bansal, AIR 1970 SC 838; Chandrika Misir & Anr.
vs Bhaiya Lal, ; ; Ledgard vs Bull, [1886] Law Report, 13 AC 134; Bartan vs Fincham, [1921] 2 K.B. Division, 291 at 299; Peachery Property Corporation vs Robinson, ,983; Choudari Rama (dead) per L.R. Choudharv Ganapathi vs Qureshi Bee, [1983] 2 Andhra Law Times 133 approved;) A question relating to jurisdiction of a court or inter pretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court.
Therefore the doctrine of res judicata does not apply to a case of decree of nullity.
If the court inherently lacks jurisdiction consent cannot confer jurisdiction.
Where certain statutory rights in a welfare legislation are creat ed, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.
[163F G] (See Mathura Prasad Bajoo Jaiswal & Ors.
vs Dossibai N.B. Jeejeebhey, ; ; Tarini Charan Bhattacher jee 's case I.L.R. 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.
[164A] (See Barrachlough vs Brown, ; Doe vs Bridges, 151 ; at 859; Premier Automobiles vs K.S. Wadke; , Therefore in the instant case, 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 there under is a nullity and does not bind the appellant.
There fore it does not operate as 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.
[164B] Hari Prashad Gupta vs Jitender Kumar Kaushik, [1982] Vol.
84, Punjab Law Reporter, 150; Sadhu Singh vs District Board, Gurdaspur & Anr., [1962] Punjab Law Reporter, Vol.
64, 1; Vasudev Dhanjibhai Modi vs Rajabhat Rabdul Rehman & Ors., ; Seth Hiralal Patni vs Sri Kali Nath, ; ; Phool Chand Sharma & Ors.
vs Chandra Shankar Pathak dr Ors., 828; Mohanlal Goenka vs Benoy Krishna Mukherjee & Ors.