V.S. Deshpande, J.
(1) This case is an illustration of the law that the executing court may refuse to execute a decree only if the lack of jurisdiction of the court passing the decree or order is not only apparent on the face of the record but is also one of inherent jurisdiction, that is to say, jurisdiction over the subject matter of the case.
(2) In an eviction petition filed by the respondent/landlord against the appellant/tenant an order under section 15(7) of the Delhi Rent Control Act, 1958 (hereinafter called the Act) was passed by the Additional Controller on 23-8-1973. An appeal against the said order was dismissed by the Rent Control Tribunal on 17-10-1973. In S.A.O. 286 of 1973 against the order of the Tribunal the appellant/ tenant made a statement admitting the claim of the respondent/landlord that the latter bona fide required the premises in question for his own residence and prayed that an order for eviction be passed against him but that he should be allowed time up to 30-4-1975 to vacate the premises. The landlord agreed to the said request. Sachar, J. of this Court thereupon passed an order of eviction against the appellant giving him time to vacate till 30-4-1975. The appellant, however, did not vacate the premises and the landlord had to start execution proceedings against him. The tenant objected to- the execution on the ground that the order of Sachar, J. was without jurisdiction inasmuch as his Lordship was hearing only an appeal against an order passed under section 15(7) of the Act. The main eviction case was still pending before the Additional Controller. Sachar, J., thereforee, could not pass an order for eviction disposing of the whole case which was pending before the Additional Controller and was not the subject matter of the appeal in the High Court. He relied on the decision of this Court in Ram Babu etc. v. Jaswant Singh 1973 RLR 397 in support of this objection.
(3) The Additional Controller as well as the Rent Control Tribunal negatived this objection. Hence this Second Appeal on a substantial question of law.
(4) The jurisdiction of the High Court to entertain the Second Appeal against the order of the Rent Control Tribunal upholding the order of the Additional Controller passed under section 15(7) of the Act arose from section 39 of the said Act. It was confined to examining the correctness of the order which had been passed by the Additional Controller and upheld by the Tribunal under section 15(7) of the Act. It did not extend beyond the said order. The main case regarding eviction was pending before the Additional Controller. It was not before the High Court in the appeal against the order passed under section 15(7) of the Act.
(5) Shri Vijay Kishan, learned counsel for the appellant, argued that the order of the High Court purporting to pass an order of eviction went beyond the jurisdiction given to the High Court by section 39 of the Act. The order of the High Court was, thereforee, without jurisdiction. The lack of jurisdiction was also apparent on the face of the record because no argument was needed to show that the appeal before the High Court related only to the order passed under section 15(7) and did not comprise the main case for eviction which was pending before the Additional Controller. The learned counsel also argued that the executing court ought to have refused to execute the order of eviction passed by Sachar, J. on the ground that it was on the face of it without jurisdiction.
(6) In Ram Babu etc. v. Jaswant Singh (1) it was pointed out that the first appellate court had limited jurisdiction to examine the correctness of the order which had been passed by the trial court under Order Xxxix Rules 1 and 2 Civil Procedure Code It did not extend to the disposing of the whole suit by accepting an application under Order Xxiii Rules 1 Civil Procedure Code for the suit was pending before the trial court and the subject matter of the whole suit was not in appeal before the Additional District Judge. The order passed by the Additional District Judge purported to dispose of the suit in an appeal against an order made under Order Xxxix Rules 1 and 2 and was, thereforee, in excess of the jurisdiction of the Additional District Judge. A revision petition against the said order of the Additional District Judge was, thereforee, allowed.
(7) Shri Vijay Kishan urged that the ratio of the above-mentioned decision should be applied to the order passed by Sachar, J. and it should be held that the said order was also in excess of jurisdiction for the same reasons. There is no difficulty in accepting this argument to a limited extent. In hearing an appeal against an interlocutory order the High Court does not have jurisdiction to dispose of the main case which is pending before the trial court. Further, the mere fact that the High Court took the jurisdiction to dispose of the main case pending in the trial court with the consent of parties may not be sufficient justification of the High Court's order. For, consent of the parties or the Failure of the aggrieved party to object to the order may be taken as a waiver of any such objection by the aggrieved party if the objections were to relate to territorial jurisdiction or to pecuniary jurisdiction in view of the provisions of section 21 Civil Procedure Code and section 11 of the Suits Valuation Act. But consent of parties or the waiver of the aggrieved party to raise an objection do not confer inherent jurisdiction relating to the subject matter of the litigation on any court. This question has been considered with reference to the relevant decision of the Supreme Court by a Division Bench of this Court in M/s. Mazda Theatres Pvt. Ltd. v. M/s. New Bank of India Ltd. I.L.R. 1975 Del 1 and 25].
(8) The matter, however, does not end there. The inherent jurisdiction to hear an appeal against the decision of the Rent Control Tribunal disposing of either the whole of the eviction petition or an interlocutory order arising out of it has been conferred on the High Court by section 39 of the Act. thereforee when the High Court purported to dispose of the whole of the eviction petition it may be said to have acted without jurisdiction in the sense that it was hearing only an appeal against an interlocutory order and did not have before it the whole of the subject matter of the eviction petition. But could the High Court be said to have acted without inherent jurisdiction Since section 39 has given jurisdiction to the High Court over the whole subject matter of the eviction petition the High Court had the inherent jurisdiction over it. The question of the High Court exceeding inherent jurisdiction thereforee did not arise. We have only to find out how the jurisdiction over the whole of the subject matter of the eviction petition was or could have been legally taken by the High Court in an appeal limited only to an order passed under section 15(7) of the Act. In my view it would be reasonable to view the matter as follows: Section 39, which empowers the High Court to hear a Second Appeal under the Act, does not provide for the procedure to be followed by the High Court in hearing such an appeal. Nor does section 37(2) of the Act or Rule 23 of the Rules framed there under purport to provide any procedure governing the appeal heard by the High Court under section 39. According to the decision of the Full Bench of this Court in The Municipal Corporation of Delhi v. Kuldip Lal Bhandari 1969 DLT 543 the procedure governing the appeal would be the usual procedure followed by the High Court in hearing Second Appeals. The High Court would, thereforee, be acting as the High Court following the procedure in the C.P.C. Section 24 of the Civil Procedure Code authorises the High Court to transfer to itself any suit or other proceeding pending before the court subordinate to it. It is true that the Rent Controller is not strictly speaking a court. Nevertheless the procedure laid down in the Civil Procedure Code has to be followed by the High Court as far as possible in relation to the rent control proceedings. thereforee, just as the High Court has the power to call to itself a suit pending in a subordinate court it would also have the power to transfer to itself rent control proceedings pending before the Rent Controller. When the parties requested Sachar, J. to dispose of the whole of the eviction proceedings as per the admission made by the appellant it would have to be presumed that Sachar, J. by necessary implication took away the eviction proceedings from the Additional Controller and transferred it to the High Court. Even if this was not explicitly in the mind of his Lordship, it was implicit in the order passed. Such an order could not be passed without withdrawing rent control proceedings from the Additional Controller.
(9) Shri Vijay Kishan relied upon the decision in P. K. Ghosh v. Mrs. K. Dutt : AIR1953Cal589 for the proposition that the High Court had no power under the Letters Patent to transfer a rent control proceeding from the court of the Small Cause to the High Court. This decision was based on the peculiar provisions of section 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950 which indicated the courts which would have the jurisdiction to try these proceedings and added that 'no other court shall be competent to entertain or try such suit'. This decision is distinguishable on two grounds. Firstly, no such words are contained in section 14 or in any other provision of the Delhi Rent Control Act, 1958. Secondly, it is not known if there was any provision in the West Bengal Act for an appeal to the High Court there under. At any rate there was no such appeal before the High Court in the Calcutta decision referred to above. P. B. Mukherji, J in that decision, did not consider the question whether the High Court could not exercise the power to transfer to itself a proceeding pending in a subordinate court under section 24 of the Civil Procedure Code or whether such a power was negatived by section 16 of the West Bengal Premises Rent Control (Temporary Provisions) Act, 1950. The power of the High Court to act under section 24 of the Civil Procedure Code has not been negatived by any provision of the Delhi Rent Control Act, 195S. On the other hand, in I hearing an appeal under section 39 the provisions of the Civil Procedure Code would apply and the High Court could invoke the power of transfer under section 24 thereof.
(10) Unless and until the lack of jurisdiction in passing an order or a decree relates to inherent jurisdiction, that is to say, jurisdiction over the subject matter of the case it would not be open to an executing court to regard the order or decree as a nullity even though the lack of jurisdiction may be apparent on the face of the record.
(11) The Second Appeal is, thereforee, dismissed with costs. Costs are awarded to the respondent because the conduct of the appellant in procuring an order from the High Court and subsequently challenging the same as being without jurisdiction is fair neither to the Court nor to the respondent. Counsel's fee Rs. 100.00 .