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2026 DAILYLAW 8663 (UTT)

Akhtari v. Ashwani Kumar

2026-03-11

Ashish Naithani

body2026
JUDGMENT : Ashish Naithani, J. The present writ petition has been filed under Article 226 of the Constitution of India challenging the legality and correctness of the order dated 19.09.2015 passed by the Civil Judge (Junior Division), Dehradun in execution proceedings, and the revisional order dated 12.10.2015 passed by the 1st Additional District Judge, Dehradun, whereby the objections raised by the Petitioners under Section 47 of the Code of Civil Procedure were rejected and the revision preferred against the said rejection was dismissed. 2. The core controversy pertains to the executability of a decree passed by the Judge, Small Causes Court, and whether such decree is without jurisdiction and therefore a nullity, as alleged by the Petitioners. 3. The dispute relates to a portion of property bearing old No. 31/32 (new No. 48), situated at Balliwala Chowk, Dehradun, where the Petitioners claim to be residing for a long period. 4. It is pleaded that the property originally belonged to Col. Ewer James Harrish, and that late Shri Mausam Ali, who was in the employment of the owner, was residing in a part of the property. 5. The property was subsequently transferred by a registered sale deed dated 29.01.1975 in favour of late Shri Raja Ram. It is stated that Mausam Ali thereafter paid rent of Rs. 5 per month to Raja Ram, thereby creating a landlord-tenant relationship. 6. Raja Ram died on 23.11.1981. According to the Petitioners, after his death, his widow Smt. Gaura Devi did not accept Mausam Ali as a tenant, and neither was rent paid nor accepted. The Petitioners therefore contend that no landlord-tenant relationship subsisted thereafter. 7. The property was later transferred in 1983 to Shri Sandeep Sharma and Smt. Madhu Garg, who in turn transferred it through a power of attorney holder to Respondent No. 1 Ashwani Kumar and Respondent No. 2 Vipin Kumar by registered sale deed dated 11.02.1998. 8. The Respondents instituted Suit No. 15 of 1999 before the Judge, Small Causes Court seeking eviction and related reliefs. A decree was passed in their favour. 9. In execution of the said decree, the Petitioners raised objections under Section 47 CPC, contending that the decree passed by the Small Causes Court was without jurisdiction and therefore a nullity and inexecutable. 10. The Civil Judge (Junior Division), Dehradun rejected the objections by order dated 19.09.2015. A decree was passed in their favour. 9. In execution of the said decree, the Petitioners raised objections under Section 47 CPC, contending that the decree passed by the Small Causes Court was without jurisdiction and therefore a nullity and inexecutable. 10. The Civil Judge (Junior Division), Dehradun rejected the objections by order dated 19.09.2015. The Petitioners preferred a revision, which was dismissed by the 1st Additional District Judge, Dehradun by order dated 12.10.2015. 11. Aggrieved thereby, the Petitioners have filed the present writ petition seeking quashing of the aforesaid two orders. 12. Learned Counsel for the Petitioners would submit that the decree passed by the Judge, Small Causes Court is a nullity in the eye of law, as the court lacked inherent jurisdiction to entertain the suit. It is contended that the jurisdiction of the Small Causes Court in eviction matters presupposes the existence of a landlord and tenant relationship, and in the absence of such relationship, the court could not have assumed jurisdiction. 13. It is argued that after the death of Raja Ram in the year 1981, no rent was either paid by late Mausam Ali nor accepted by his widow, and therefore, the contractual relationship of landlord and tenant stood extinguished. It is further contended that the subsequent purchasers could not claim the status of landlords in the absence of subsisting tenancy, and the dispute thereafter was essentially one of title and possession, falling outside the summary jurisdiction of the Small Causes Court. 14. Learned Counsel would further submit that once the very foundation of jurisdiction, namely the existence of tenancy, was seriously disputed, the matter ought to have been tried by a regular civil court and not by the Small Causes Court. According to the Petitioners, the decree having been passed by a court lacking inherent jurisdiction, is void ab initio and inexecutable. 15. It is also contended that a jurisdictional defect strikes at the root of the matter and can be raised at any stage, including in execution proceedings. Placing reliance on the settled principle that a decree passed without jurisdiction is a nullity, it is argued that the executing court erred in rejecting the objections under Section 47 of the Code of Civil Procedure without examining the jurisdictional issue in its proper perspective. Placing reliance on the settled principle that a decree passed without jurisdiction is a nullity, it is argued that the executing court erred in rejecting the objections under Section 47 of the Code of Civil Procedure without examining the jurisdictional issue in its proper perspective. It is further submitted that the revisional court failed to exercise jurisdiction vested in it and mechanically affirmed the order of the executing court. 16. Per contra, learned Counsel for the Respondents would submit that the suit instituted before the Small Causes Court was an eviction suit based on the alleged relationship of landlord and tenant, and such suits squarely fall within the jurisdiction conferred upon the Small Causes Court under the relevant statutory framework. 17. It is argued that the question whether a landlord and tenant relationship exists is itself a matter which the Small Causes Court is competent to adjudicate. Even if the court were to arrive at an erroneous conclusion on facts or law, such an error would be within jurisdiction and would not render the decree a nullity. 18. Learned Counsel for the Respondents would further contend that the Petitioners are, in effect, seeking to reopen the merits of the decree in execution proceedings, which is impermissible under Section 47 of the Code. It is submitted that once the court which passed the decree was competent to entertain the suit and decide the issues arising therein, the decree cannot be treated as void merely because one party disputes the findings. 19. It is also submitted that the decree has attained finality and has not been set aside in any appeal or other appropriate proceeding. The objections raised in execution are nothing but an attempt to delay the fruits of the decree. According to the Respondents, both the executing court and the revisional court have rightly rejected the objections, and no interference is warranted in exercise of writ jurisdiction. 20. Having heard learned Counsel for the parties and perused the record, this Court finds that the entire challenge rests upon the contention that the decree passed by the Judge, Small Causes Court suffers from inherent lack of jurisdiction and is therefore a nullity. 20. Having heard learned Counsel for the parties and perused the record, this Court finds that the entire challenge rests upon the contention that the decree passed by the Judge, Small Causes Court suffers from inherent lack of jurisdiction and is therefore a nullity. The question that arises for consideration is whether the alleged absence of landlord and tenant relationship deprived the Small Causes Court of its jurisdiction, or whether such issue was one which the court was competent to determine in the suit itself. 21. The jurisdiction of the Small Causes Court extends to suits between landlord and tenant for eviction and recovery of rent, as provided under the statutory scheme. The existence or otherwise of a landlord and tenant relationship is not a collateral matter beyond its competence, but a foundational issue which the court is required to examine and adjudicate. A finding rendered on such issue, even if erroneous, would be a decision within jurisdiction and would not render the decree void. 22. A distinction is well settled between a decree passed without inherent jurisdiction and a decree passed in exercise of jurisdiction but containing an error of law or fact. Only in the former case can the decree be treated as a nullity and questioned at the stage of execution. Where the court has the authority to entertain the class of suit and to decide the issues arising therein, any alleged error in appreciation of evidence or application of law does not divest it of jurisdiction. 23. In the present case, the suit was instituted as an eviction suit based on the assertion of landlord and tenant relationship. The Small Causes Court was competent to examine whether such relationship existed. The Petitioners participated in the proceedings. The decree so passed cannot be said to be one rendered by a court wholly lacking jurisdiction over the subject matter. 24. The objections raised under Section 47 of the Code of Civil Procedure were, in substance, an attempt to reopen the merits of the decree by challenging the finding on tenancy. The executing court is not empowered to sit in appeal over the decree. The scope of enquiry under Section 47 is limited to questions relating to execution, discharge or satisfaction of the decree and does not extend to re-adjudication of issues which stood concluded by the decree. 25. The executing court is not empowered to sit in appeal over the decree. The scope of enquiry under Section 47 is limited to questions relating to execution, discharge or satisfaction of the decree and does not extend to re-adjudication of issues which stood concluded by the decree. 25. The revisional court has examined the matter and affirmed the order of the executing court. No patent lack of jurisdiction, perversity, or manifest illegality is demonstrated so as to warrant interference in exercise of writ jurisdiction. ORDER 26. In view of the foregoing discussion and for the reasons recorded hereinabove, this Court finds no merit in the writ petition. The order dated 19.09.2015 passed by the Civil Judge (Junior Division), Dehradun in execution proceedings, and the order dated 12.10.2015 passed by the 1st Additional District Judge, Dehradun in revision, do not suffer from any jurisdictional error or manifest illegality warranting interference under Article 226 of the Constitution of India. 27. The decree passed by the Judge, Small Causes Court cannot be treated as a nullity, and the objections raised by the Petitioners under Section 47 of the Code of Civil Procedure were rightly rejected. Accordingly, the writ petition stands dismissed 28. Pending applications, if any, also stand disposed of.