Smt. Akhtari And Others ... vs Shri Ashwani Kumar And Another
2026 Latest Caselaw 1765 UK

Uttarakhand High Court

Smt. Akhtari And Others ... vs Shri Ashwani Kumar And Another on 11 March, 2026

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                                                                 Judgment Reserved on 12.12.2025
                                                               Judgment Pronounced on 11.03.2026


IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                           Writ Petition (M/S) No. 2641 of 2015

Smt. Akhtari and others                                                              ......Petitioners

                                                    Vs.

Shri Ashwani Kumar and Another                                                    .....Respondents


Presence: Mr. S.K. Jain, learned Senior Advocate assisted by Mr. Divyam Sharma,
              learned counsel for the Petitioners.
              Mr. Bhuwan Bhatt, learned counsel for the Respondents.

Hon'ble 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.


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Writ Petition (M/S) No. 2641 of 2015-----Smt. Akhtari and Others v. Ashwani Kumar and Another

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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.




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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




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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. 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



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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. 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.



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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 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.


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Writ Petition (M/S) No. 2641 of 2015-----Smt. Akhtari and Others v. Ashwani Kumar and Another

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                                                  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.

(Ashish Naithani J.) 11.03.2026 Arti

Writ Petition (M/S) No. 2641 of 2015-----Smt. Akhtari and Others v. Ashwani Kumar and Another

Ashish Naithani J.