BALVANT N. VISWAMITRA AND ORS.versusYADAV SADASHIV MULE (D) THROUGH LRS. AND ORS.

               BALVANT N. VISWAMITRA AND ORS.                               A
                                    v.
    YADA V SADASHIV MULE (D) THROUGH LRS. AND ORS.

                           AUGUST 13, 2004

   [R.C. LAHOTI, CJ., G.P. MATHUR AND C.K. THAKKER, JJ.]                    B
     Code of Civil Procedure, 1908 :

      Sections 2(2), 33 and 47-Decree-Null and voidll"egular or wrong-
Distinction between-Held : Decree or order passed by a court having no C
jurisdiction is nullity and can be challenged at any stage, even in execution
 or collateral proceedings-All irregular or wrong decree or orders are not
 necessarily null and void-An erroneous decrees which is not void cannot
 be challenged in execution or collateral proceedings.

        Order 1, Rule 9 and sections 2(2) and 33-Suit for possession by D
landlord against heirs and legal representatives of tenant-Suit decreed
 in favour oflandlord-Execution proceedings-Obstructions by third party
who are claiming through tenant-Third party pleading that as decree
passed without proper notice and they were not impleaded as necessary
parties, decree a nullity and would not bind them-Held : From records E
 it is clear that landlord made all attempts to serve defendants, there was
presumption of service of notice-Defendants being aware of the
proceedings, failed to make appearance-Advocate engaged by defendants
appeared, also cross-examined the plaintiff, later withdrew his appearance
for want of instructions-Thus, in the light of these facts, decree was passed F
by the competent court, as such decree cannot be said to be a nul/ity-
Further, there being no privily of contract between landlord and the third
party, they were necessary parties to the suit-Hence, order of High Court
that decree null and void, set aside and decree passed by courts below
restored.
                                                                            G
      Appellants' father - landlord let out the land owned by him on
rent to P who constructed hut over the land. He defaulted in paying
rent and arrears of rent accumulated for a period of thirteen years.
Since P died, proceedings were initiated against heirs of deceased P.
It is appellant's case that they issued notice regarding termination of H
                                    519
    520                 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A tenancy to the heirs and legal representatives of deceased P by
  registered post whicb came back unserved. Then notice was sent under
  certificate of post whic!L did not come back. Again, notice was fixed
  on suit premises. Appellants also made an attempt to get names and
  addresses of heirs of deceased A, son of deceased P but did not get any
B information. Thereafter, appellants filed suit for possession against
  heirs and legal representatives of deceased P. When case was fixed for
  recording evidence, Advocate appeared on behalf of defendants and
  evidence of plaintiff No. 2 was recorded in his presence. He also partly
  cross-examined plaintiff No. 2. However, the defendants remained
C absent· in the proceedings. On the next date of hearing, the Advocate
  withdrew his appearance since he did not have instructions from the
  client. Accordingly, trial court decreed the suit and ordered defendants
  to vacate and handover the possession. Thereafter, execution proceedings
  were initiated, but the third party-respondents caused obstructions
D and filed an appeal against the decree passed by trial court and the
  order passed on thl! obstruction notice. Appellate Court dismissed the
  appeal, however stayed execution of warrant of possession. Respondents
  then filed a writ petition. Single Judge of High Court allowed the
  petition holding the decree to be void ab initio for non-joinder of
   respondents as party in the suit. Hence, the present appeal.
E
       Appellant contended that inspite of best efforts they could not get
  the names, addresses and other information regarding heirs and legal
  representatives of Pandas such were constrained to initiate proceedings
  against the heirs and legal representatives of deceased P; that the
F defendants were aware of the proceedings and had engaged an
  Advocate who was appearing in the matter and was present when
  evidence of plaintiff No. 2 was recorded and also when he partly cross-
  examined plaintiff No. 2; that on the next date of hearing, the Advocate
  withdrew his appearance as he had 'no instructions' from the defendants
G and in the light of these acts, a decree passed by a court of competent
  jurisdiction cannot be said to be a nullity; that the respondents cannot
  challenge legality and validity of the decree passed against the heirs
  of P as they did n<!t claim to be the heirs and legal representatives of
  P; and that Single Judge of High Court has committed an error of law
H as well as of jurisdiction in holding the decree nullity.
                  B.N. VISWAMITRA v. Y.S. MULE                    521

     Respondents contended that the notice was issued to the heirs and A
legal representatives of P without disclosing the names, addresses' and
other details; that respondents were not issued notice regarding
termination of tenancy and were never joined as necessary parties in
the suit; that the decree passed was without proper notice and without
joining necessary parties, as such would not bind the heirs and legal B
representatives of P and respondents who are claiming directly through
P; and that Single Judge of High Court, in the circumstances, was right
in setting aside the order passed by the courts below.

     Allowing the appeal, the Court
                                                                        c
      HELD : 1.1. The distinction between a decree which is void and
a decree which is wrong, incorrect, irregular or not in accordance with
law cannot be overlooked or. ignored. Where a court lacks inherent
jurisdiction in passing a decree or making an order, a decree or order
passed by such court would be without jurisdiction, non est and void D
ab initio. A defect of jurisdiction of the court goes to the root of the
matter and strikes at the very authority of the court to pass a decree
or make an order. Such defect has always been treated as basic and
fundamental and a decree or order passed by a court or an authority
having so jurisdiction is nullity. Validity of such decree or order can E
be challenged at any stage, even in execution or collateral proceedings.
All irregular· or wrong decrees or orders are not necessarily null and
void. An erroneous or illegal decision, which is not void, cannot .be
objected in execution or collateral proceedings. [527-G-H)

      1.2. In the instant case, proceedings were initiated against the
                                                                        F
heirs and legal representatives of deceased P and a decree was passed
by .competent court having jurisdiction over the subject matter of the
suit. From the record, it is clear that the plaintiffs tried their best to
get the names, addresses and other information regarding heirs and
legal representatives of P and made all attempts at their end to serve G
the defendants. It is also clear that defendants were aware of the
proceedings and they had engaged an Advocate who was appearing in
the matter. Advocate was present when evidence of plaintiff No. 2 was
recorded and was also partly cross-examined by him. Thereafter, the
Advocate withdrew his appearance because he had no instructions in H
     522                  SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

· A the matter from the defendants and accordingly decree was passed by
     trial court. Such a decree, cannot be held nullity. If the decree is not
     null and void, as per settled law, appropriate proceedings will have to
     be taken by the persons aggrieved by such decree. (531-D-HJ

 B        Kiran Singh & Ors. v. Chaman Paswan & Ors., (1955) 1SCR117;
     Seth Hiralal Patni v. Sri Kali Nath, [1962) 2 SCR 747; Vasudev
     Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., (1971 J 1SCR66 and
     Rajique Bibi v. Sayed Wa/iuddin, [2004) l SCC 287, relied 0!1·

           Malikarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa &
 C Anr., (1900) 27 IA 216; Ittavira Mathai v. Varkey Varkey & Anr., [1964)
     l SCR 495 and Bhawar/al v. Universal Heavy Mechanical Lifting
     Enterprises, (1999] 1 SCC 558, referred to.

         1.3. It is case of the plaintiffs that the property was let out to P.
 D It is not even the case of the respondent that they were the tenants of
   P. They are claiming through P. At the most, they can be said to be
   sub-tenants i.e. tenants of P.There was no privity of contract between
   the landlord and the respondents. The respondents cannot be said to
   be "necessary party" to the proceedings. Therefore, it was not necessary
 E for the plaintiffs to join respondents as defendants in the suit nor to
   give notice to them before initiation of the proceedings. Non-joinder
   of respondents, hence, would not make a decree passed by Court of
   Small Causes, nullity or inexecutable. High Court erroneously proceeded
   against the well settled principle of law that since the respondents were
 F claiming through P and as they were not joined as 'party' in the suit,
   the orders passed by the court would in no way affect or bind them;
   and that the decree is void ab initio. Even thereafter, A and others
   claiming to be heirs of P filed a writ petition against the decree passed,
   which was dismissed. Therefore, order passed by High Court is set
   aside and the decree passed by Courts below is restored and also
 G interim stay granted earlier is vacated. (532-G-H; 533-A; 534-C-GJ

          Udit Narain Singh Malpaharia v. Addi. Member, Board of Revenue,
     Bihar, (1963) Supp. 1 SCR 676; Mis. Importers and Manufacturers Ltd.
     v. Pheroze Framroze Taraporewala and Ors., AIR (1953) SC 73 and
 H   Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. and Another, AIR (1964) SC
           B.N. VISWAMITRA v. Y.S. MULE [THAKKER, J.)                  523

1889, referred to.                                                            A
    CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5617 of
1999.

     From the Judgment and Order dated 14.1.98 of the Bombay High B
Court in C.W.P. No. 3384 of 1986.

      V.T. Lulia, Mukesh Viswamitra, Raja Chatterjee and G.S. Chatterjee
for the Appellants.

     V.N. Ganpule, Satyajit Saha and Ms. V.D. Khanna for the Respondents. C

     The Judgment of the Court was delivered by

    . THAKKER, J.: The present appeal is directed against the judgment
and order passed by the High Court of Bombay on January 14, 1998 in
Civil Writ Petition No. 3384 of 1986. By the said order, a single Judge D
of the High Court, while exercising supervisory jurisdiction under Article
227                                                                     of
the Constitution, held the decree sought to be executed against the
petitioners - respondents herein - as void ab initio.
                                                                              E
    To appreciate the controversy raised in this appeal, few relevant facts
may be stated:

      There was piece of land bearing Survey No. 888 admeasuring 85 x
35 sq. feet at village Kanjur, Bombay. The land was let out by Nagendra
Vishwamitra, father of the appellants to one Papamiya. The said Papamiya F
constructed hut over the land and was paying rent to the landlord. It was
the case of the landlord that the tenant did not pay rent regularly and was
in arrears of rent from November 01, 1963 to October 31, 1976 i.e. for
13 years. Since Papamiya died, proceedings were initiated against heirs of
deceased Papamiya. According to the appellants, a notice was issued to G
heirs and legal representatives of Papamiya terminating the tenancy by a
registered post but the heirs could not be served and the notice came back.
Again, a notice was sent under certificate of posting which had not come
back. Thus, there was a presumption of service of notice. It was also the
case of the appellants that on the outer-door of the suit premises, a copy H
    524                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A of the notice was affixed. On 4th April, 1977, a suit for possession was
  filed by the plaintiffs-appellants against heirs and legal representatives of
  deceased Papamiya in the Court of Small Causes, Bombay, being RAE Suit
  No. 1992of1977. On 25th March, 1980, the case was listed for recording
  evidence. One Mr. G.R. Singh, advocate was appearing for the defendants.
B On that day, evidence of plaintiff No. 2 was recorded. He stated that
  deceased Nagendra Vishwamitra was his father and the plaintiffs were
  owners of the property. It was also stated by him that Papamiya had a son
  by name Ahmed and a notice was sent to him by registered post. However,
  the notice packet came back with remark 'expired'. Deceased Ahmed had
C legal heirs, but plaintiffNo. 2 did not know their names. They were residing
  at Bhandup on Bombay-Agra road and not in the suit premises. He further
  stated that he made enquiries as to heirs and legal representatives of
  deceased Ahmed both at Kanjur and Bhandup addresses, but could not get
  sufficient information. He, therefore, filed a suit against heirs and legal
  representatives of Papamiya. He also produced a packet containing the
D notice which was returned with remark "not known". He tendered the
  certificate by which notice was sent under certificate of posting. According
  to him, that letter was not returned. A certificate and packet were produced
  by him in his evidence. He also stated that a notice was pasted outside the
  suit premises.
E
        The plaintiff No. 2 was partly cross-examined by Mr. Singh. In the
  cross-examination, he stated that the notice was pasted at both the
  addresses i.e. Kanjur as well as Bhandup. The notice was also affixed on
  the property let out to the defendant. The case was therefore adjourned.
  On 18th June, 1980, when the matter was called out for further hearing,
F Mr. Singh stated that he had 'no instruction' from the defendants in the
  matter who had remained absent though intimated about the date by
  registered post as also by certificate of posting. He, therefore, requested
  the court to permit his withdrawal from appearance which was granted by
  the court. Since the plaintiff had adduced evidence and the defendants had
G remained absent; according to the court, the evidence of the plaintiff had
  gone unchallenged. In the plaint also, it was specifically stated by the
  plaintiff that the defendant was in arrears of rent for more than six months
  and that had remained uncontroverted and unchallenged. In the
  circumstances, the trial court held that the plaintiffs were entitled to decree,
H as prayed for. The suit was, therefore, decreed and the defendants were
           B.N. VISWAMITRA v. Y.S. MULE (THAKKER, J.]                   525

ordered to quit and vacate the premises and handover the possession of the A
suit premises to the plaintiffs on or before 31st July, 1980. On the basis
of the decree execution proceedings were taken out by the plaintiffs, but
there were obstructions by the third party, i.e. respondents herein. An
application was, therefore, filed by the plaintiffs-decree holders for removal
of obstructions. The executing court, by an order dated 13th July, 1986, B
held that the decree holders were entitled to execute the decree and they
were allowed to recover the possession of the property. The obstructionists
were ordered to pay an amount of Rs. 5,000 towards costs.

     It may be stated that the obstructionists-respondents herein, filed an C
appeal against the decree passed by the trial court being Appeal No. 830
of 1984 as also against the order passed in the Obstruction Notice No. 293
of 1980. The appellate bench of the Small Causes Court, Bombay, by a
judgment and order dated 14th July, 1986, dismissed the appeal with no
order as to costs. At the request of obstructionists, the execution of warrant
of possession was stayed for a period of one month.                            D

     Aggrieved by the said order, the obstructionists approached the High
Court by filing Civil Writ Petition No. 3384 of 1986, which was allowed
by the learned single Judge holding the decree to be void ab initio. The
said order is challenged by the appellants in the present appeal. On E
September 27, 1999, Special Leave Petition was granted and status-quo
was ordered.

      We have heard the learned counsel for the parties. The learned
counsel for the appellants strenuously urged that the High Court has F
committed an error of law as well as of jurisdiction in holding the decree
nullity. It was submitted that Papamiya to whom the property was let out
died and hence proceedings were initiated against his heirs and legal
representatives. The counsel urged that in spite of best efforts by the
appellants, necessary information as to heirs and legal representatives of
deceased Papamiya could not be obtained. The appellants, therefore, were G
constrained to initiate proceedings against the heirs and legal representatives
of deceased Papamiya. The heirs and legal representatives of Papamiya
were aware of the proceedings and had engaged an advocate Mr. G.R.
Singh who appeared in the trial court i.e. Small Causes Court, Bombay.
The evidence of plaintiff No. 2 was recorded in presence of Mr. Singh. H
    526                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A The examination-in-chief of plaintiff No. 2 was over on 25th March, 1980.
  He was partly cross-examined by Mr. Singh and the matter was adjourned.
  On the next date of hearing, Mr. Singh informed the court that he had "no
  instructions" from the defendants. He had already intimated the defendants
  about it by registered letter and in the light of that fact, he prayed for
B withdrawal of appearance which was granted by the court. If, in the light
  of these facts, a decree was passed by a court of competent jurisdiction,
  it cannot be said that the decree was nullity. The counsel further submitted
  that so far as the present respondents are concerned, they were totally
  strangers inasmuch as they did not claim to be the heirs and legal
  representatives of deceased Papamiya. They, therefore, cannot challenge
C legality and validity of the decree passed against the heirs of Papamiya.
  Their obstructions, therefore, were rejected by the executing court. An
  appeal filed by the obstructionists was also rightly dismissed by appellate
  bench of the Small Causes Court, Bombay. A learned single Judge of the
  High Court ought not to have set aside those orders. He, therefore, prayed
D that the appeal deserves to be allowed by reversing the decision of the High    •
  Court and restoring the order passed by the Small Causes Court, Bombay
  and confirmed by the appellate bench of the court.

          Learned counsel for the respondents, on the other hand, supported the
E order of the High Court. According to him, the respondent5 were never
  joined as party defendants in the suit before the Small Causes Court,
  Bombay. No notice was issued to them. They were never made known
  about the proceedings and hence the decree said to have been passed
  against the heirs and legal representatives of Papamiya would not bind
F them. It was also submitted that the notice was not issued by the plaintiffs
  to named heirs and legal representatives of Papamiya. The notice was
  issued to the heirs and legal representatives of Papamiya without
  disclosing the names, addresses and other details which ought to have been
  mentioned in the notice. The notice was, therefore, not a valid notice and
  no proceedings could have been legally instituted against the heirs and
G legal representatives of deceased Papamiya. A decree passed without
  proper notice and without joining necessary parties would not bind the
  heirs and legal representatives of deceased Papamiya. In any case, the
  respondents who are not claiming through heirs and legal representatives
  of Papamiya, but from Papamiya directly, cannot be made to suffer. The
H learned single Judge of the High Court, in the circumstances, was right
           B.N. VISWAMITRA v. Y.S. MULE [THAKKER, J.)                    527

in reversing the order passed by the courts below and no interference is A
called for.

      Having heard the learned counsel for the parties, in our opinion, the
appeal deserves to be allowed. From the facts narrated in the plaint as also
from the deposition of plaintiff No. 2, as already narrated in the earlier part B
of the judgment, it is clear that the plaintiffs did their best to serve heirs
and legal representatives of deceased Papamiya. They had sent notice by
registered post which was returned unserved. Again, a notice was sent
under certificate of posting which had not come back. It was, therefore,
the case of the plaintiffs that the presumption would be that the notice was
received by the defendants. Again, a notice was affixed on the suit C
premises. All these facts have been stated in the plaint. In the substantive
evidence, plaintiffNo. 2 had deposed that he had tried to get names oflegal
heirs of Ahmed, son of deceased Papamiya, but the plaintiffs could not get
such information, names and addresses. He also stated that deceased
Ahmed was staying at Bhandup on Bombay-Agra Road and, hence, he D
made enquiries at the Bhandup address but could not get the details about
the heirs. The only alternative, thus left to the plaintiffs was to affix the
notice on suit premises which was also done. It may be recalled at this stage
that on the day of deposition of plaintiff No. 2 recorded on 25th March,
1980, the defendants were representated by an advocate Mr. Singh and E
plaintiff No. 2 was partly cross-examined. It was only after that date i.e.
25th March, 1980, that Mr. Singh had no instructions and he made prayer
to the court on 18th June, 1980 allowing him to withdraw his appearance
which was granted by the court and a decree was passed. In the
circumstances, we are satisfied that the plaintiffs had made all attempts at
their end to serve the defendants, but they could not be served in view of F
the facts stated and circumstances mentioned in the plaint as well in the
substantive evidence of plaintiff No. 2 and the decree was passed by the
trial court.

      The main question which arises for our consideration is whether the G
decree passed by the trial court can be said to be 'null and 'void'. In our
opinion, the law on the point is well settled. The distinction between a
decree which is void and a decree which is wrong, incorrect, irregular or
not in accordance with law cannot be overlooked or ignored. Where a court
lacks inherent jurisdiction in passing a decree or making an order, a decree H
    528                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A or order passed by such court would be without jurisdiction non est and
  void ab initio. A defect of jurisdiction of the court goes to the root of the
  matter and strikes at the very authority of the court to pass a decree or make
  an order. Such defect has always been treated as basic and fundamental
  and a decree or order passed by a court or an authority having no
B jurisdiction is nullity. Validity of such decree or order can be challenged
  at any stage, even in execution or collateral proceedings.

          Before five decades, in Kiran Singh & Ors. v. Chaman Paswan &
    Ors., [1955] 1 SCR 117 this Court declared;

c                 "It is a fundamental principle well established that a decree
             passed by a court without jurisdiction is a nullity and that its
             invalidity could be set up wherever and whenever it is sought to
             be enforced or relied upon, even at the stage of execution and even
             in collateral proceedings. A defect ofjurisdiction. ..... strikes at the
             very authority of the Court to pass any decree and such a defect
D            cannot be cured even by consent of parties."
                                                            (emphasis supplied)

          The said principle was reiterated by this Court in Seth Hiralal Patni
    v. Sri Kali Nath, [1962] 2 SCR 747. The Court said : "Competence of a
E   court to try a case goes to the very root of the jurisdiction, and where it
    is lacking, it is case of inherent lack of jurisdiction."

          In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors.,
    [1871] 1 SCR 66, a decree for possession was passed by the Court of Small
F Causes which was confirmed in appeal as well as in revision. In execution
    proceedings, it was contented that the Small Causes Court had no
    jurisdiction to pass the decree and, hence, it was a nullity.

          Rejecting the contention, this Court stated:

G                 "a Court executing a decree cannot go behind the decree :
             between the parties or their representatives it must take the decree
             according to its tenor, and cannot entertain any objection that the
             decree was incorrect in law or on facts. Until it is set aside by an
             appropriate proceeding in appeal or revision, a decree even if it
H            be erroneous is still binding between the parties.
           B.N. VISWAMITRA v. Y.S. MULE [THAKKER, J.]                 529

     Suffice it to say that recently a bench of two-Judges of this Court has A
considered the distinction between null and void decree and illegal decree
in Rajique Bibi v. Sayed Waliuddin, [2004] 1 SCC 287. One of us (R.C.
Lahoti, J. as his Lordship then was), quoting with approval the law laid
down in Vasudev Dhanjibhai Modi, stated:
                                                                            B
              "What is 'void' has to be clearly understood. A decree can
         be said to be without jurisdiction, and hence a nullity, ifthe court
         passing the decree has usurped a jurisdiction which it did not have;
         a mere wrong exercise of jurisdiction does not result in a nuliity.
         The lack of jurisdiction in the court passing the decree II)USt be C
         patent on its face in order to enable the executing court to take
         cognizance of such a nullity based on want of jurisdiction, else
         the normal rule that an executing court cannot go behind the
         decree must prevail.

               Two things must be clearly borne in mind. Firstly, 'the court D
         will invalidate an order only if the right remedy is sought by the
         right person in the right proceedings and circumstances. The order
         may be a 'a nullity' and 'void' but these terms have not absolute
         sense: their meaning is relative, depending upon the court's
         willingness to grant relief in any particular situation. If this E
         principle of illegal relativity is !lome in mind, the law can be made
         to operate justly and reasonably in cases where the doctrine of
         ultra vires, rigidly applied, would produce unacceptable results.'
         (Administrative Law, Wade and Forsyth, 8th Edn., 2000, p. 308).
         Secondly, there is a distinction between mere administrative F
         orders and the decrees of courts, especially a superior court. 'The
         order of a superior court such as the High Court must always be
         obeyed no matter what flaws it may be thought to contain. Thus,
         a party who disobeys a High Court injunction in punishable for
         contempt of court even though it was granted in proceeciings
         deemed to have been irPevocably abandoned owing to the expiry G
         of a time-limit.' (ibid., p. 312)

              A distinction exists between a decree passed by a court
         having no jurisdiction and consequently being a nullity and not
         executable and a decree of the court which is merely illegal or not H
    530                   SUPREME COURT REPORTS [2004]'SUPP. 3 S.C.R.

A            passed in accordance with the procedure laid down by law. A
             decree suffering from illegality or irregularity of procedure,
             cannot be termed inexecutable by the executing court; the remedy
             of a person aggrieved by such a decree is to have it set aside in
             a duly constituted legal proceedings or by a superior court failing
             which-he must obey the common of the decree. A decree passed
B
             by a court of competent jurisdiction cannot be denuded of its
             efficacy by .any collateral attack or in incidental proceedings."
                                                           (emphasis supplied)

          From the above decisions, it is amply clear that all irregular or wrong
C decrees or orders are not necessarily null and void. An erroneous or illegal
    decision, which is not void, cannot be objected in execution or collateral
    proceedings.

          Before more than a century, in Malkarjun Bin Shidramappa Pasare
D v.Narhari Bin Shivappa & Anr., (1990) 27 IA 216: ILR25 Born 337 (PC),
    the executing court wrongly held that a particular person represented the
    estate of the deceased judgment-<lebtor and put the property for sale in
    execution. Drawing the distinction between absence of jurisdiction and
    wrong exercise thereof, the Privy Council observed:

E                 "He contended that he was not the right person, but the
             Court, having received his protest, decided that he was the right
             person, and so proceeded with the execution. In so doing the court
             was exercising its jurisdiction. It made a sad mistake, it is true;
             but a court has jurisdiction to decide wrong as well as right. If
F            it decides wrong, the wronged party can only take the course
             prescribed by law for setting matters right; and if that course is
             not taken, the decision however wrong, cannot be disturbed."

         In Ittavira Mathai v. Varkey Varkey & Anr., [1964] 1 SCR 495, this
    Court stated :
G
                  "If the suit was barred by time and yet the court decreed it,
             the court would be committing an illegality and therefore the
             aggrived party would be entitled to have the decree set aside by
             preferring an appeal against it. But it is well settled that a court
H            having jurisdiction over the subject-matter of the suit and over
           B.N. VISWAMITRA v. Y.S. MULE [THAKKER, J.]                  531

        parties thereto, though bound to decide right may decide wrong; A
        and that even though it decided wrong it would not be doing
        something which it had no jurisdiction to do ...... If the party
        aggrieved does not take appropriate steps to have that e"or
        coPrected, the e"oneous decree will hold good and will not be
        open to challenge on the basis of being a nullity.               B
                                                     (emphasis supplied)

     Again, in Bhawarlal v. Universal Heavy Mechanical Lifting
Enterprises, [1999] 1 SCC 558, this Court held that "even if the decree
was passed beyond the period of limitation, it would be an error of law,
or at the highest, a wrong decision which can be corrected in appellate C
proceedings and not by the executing court which was bound by such
decree."

      As already stated hereinabove, proceedings were initiated against the
heirs and legal representatives of deceased Papamiya and a decree was D
passed by competent court having jurisdiction over the subject-matter of
the suit: From the record, it is clear that the plaintiffs tried their best to
get the names, addresses and other information regarding heirs and legal
representatives of Papamiya. For the said purpose, notices were sent to
heirs and legal representative of the deceased by registered post which had E
come back. A notice under certificate of posting did not come back. A
notice was, therefore, affixed on the suit premises. An attempt was also
made to get names and addresses of heirs of the deceased Ahmed who was
said to be staying at Bhandup, but no such information was received by
the plaintiffs. From the record, it is also clear that defendants were aware
of the proceedings and they had engaged-Mr. G.R. Singh, advocate who F
was appearing in the matter. On 25th March, 1980, he was present when
plaintiff No. 2 was examined on oath and was partly cross-examined by
Mr. Singh. Thereafter, with the permission of the court, Mr. Singh
withdrew his appearance because he had no instructions in the matter from
the defendants and a decree was passed.                                        G
     _In our considered opinion, such a decree, by no stretch of imagination,
can be described nullity. If the decree is not null and void, as per settled
law, appropriate proceedings will have to be taken by the persons
aggrieved by such decree.                                                     H
    532                  SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A       The learned counsel for the appellants, in this connection, rightly
  invited our attention to a decision of the High Court of Bombay in Special
  Civil Application No. 1360 of 1973 decided on November 15/16, 1977.
  In that case, property was let by the landlord to one Narayan. Narayan died
  and thereafter the landlord terminated the tenancy by issuing notice to "the
B heirs and legal representatives" of deceased Narayan. A suit was thereafter
  filed against heirs and legal representatives of deceased Narayan on the
  grounds of arrears of rent and unlawful sub-letting of suit premises. The
  person in possession of the property (sub-tenant) made an application to
  be joined as party defendant which was granted. The suit was not contested
  by the heirs and legal representatives of deceased Narayan and it was
C contested by the sub-tenant and the decree was passed by the Trial Court
  and confirmed by the appellate court.

         The sub-tenant approached the High Court. It was contended that the
    notice addressed to "the heirs and legal representatives" of deceased
    Narayan could not be said to be in accordance with law and tenancy was
D   thus not validly terminated. No suit, hence, could have been fifed and no
    decree could have been passed.

          Negativing the contention, the court held that the persons who could
    make grievance were the heirs and legal representatives of deceased
E   Narayan and the petitioner had no right to make such grievance. The court
    further observed that since the petitioner was claiming through the tenant,
    he was bound by the decree passed in the suit. The petition was, therefore,
    dismissed.

          Now, it may be stated that in the case on hand, proceedings were
F initiated by S.K. Shaikh Ahmad and six others claiming to be heirs of
    deceased Papamiya by filing Writ Petition No. 456 of 1996 challenging
    the decree dated 18th June, 1980, but the petition came to be dismissed.
    In the circumstances, it cannot be said that the decree which was passed
    by a competent court could not be itxecuted against the respondents herein.
G         It was contended by learned counsel for the respondents that the
    respondents were not made party defendants in the suit and hence no decree
    could have been passed nor could be executed against them. We are afraid
    we cannot uphold the contention. It is the case of the plaintiffs that the
    property was let to Papamiya. It is not even the case of the respondents
                                                                                  ....
H   that they were the tenants of the plaintiffs. They are claiming through
           B.N. VISWAMITRA v. Y.S. MULE [THAKKER, J.]                   533

Papamiya, At the most, therefore, they can be said to be sub-tenants i.e. A
tenants of Papamiya. There was no privity of contract between the landlord
and the respondents. In our opinion therefore, it was not necessary for the
plaintiffs to join respondents as defendants in the suit nor to give notice
to them before initiation of the proceedings. The respondl!nts cannot be
said to be "necessary party" to the proceedings. '·                         B
      As held by this Court in Udit Narain Singh Malpaharia v. Addi.
Member, Board of Revenue, Bihar, [1963] Supp I SCR 676, there is a
distinction between "necessary party" and "proper party" In that case, the
Court said:
                                                                              c
               "The law on the subject is well settled: it is enough if we state
         the principle. A necessary party is one without whom no order can
         be made effectively; a proper party is one in whose absence an
         effective order can be made but whose presence is necessary for
         a complete and final decision on the question involved in the D
         proceeding. "
                                                           (emphasis supplied)

      In Mis.Importers and Manufacturers Ltd. v. Pheroze Framroze
Taraporewala and Ors., AIR (1953) SC 73 this Court held that in a suit
for possession by a landlord against a tenant, sub-tenant is merely a proper E
party and not a necessary party.

      In Rupchand Gupta v. Raghvanshi (Pvt.) Ltd. and Another, AIR
(I 964) SC I 889 an ex parte decree was passed in favour of the landlord
and against the tenant. An application for setting aside the decree was made F
by the sub-tenant by invoking the provisions of Order.IX, Rule I 3 of the
Code of Civil Procedure, I 908, inter aiia·contending that the decree was
collusive inasmuch as the sub-tenant was not joined as party defendant. The
decree was, therefore, liable to be set aside. Repelling the contention, this
Court observed:
                                                                              G
              "(I)t is quite clear that the law does not require that the sub-
         lessee need be made a party. It has been rightly pointed out by
         the High Court that in all cases where the landlord institutes a suit
         against the lessee for possession of the land on the basis of a valid
         notice to quit served on the lessee and does not implead the sub- H
    534                   SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A            lessee as a party to the suit, the object of the landlord is to eject
             the sub-lessee from the land in execution of the decree and such
             an object is quite legitimate. The decree in such a suit would bind
             the sub-lessee. This may act harshly on the sub-lessee; but this
             is a position well understood by him when he took the sub-lease.
             The law allows this and so the omission cannot be said to be an
B
             improper act."
                                                             (emphasis supplied)

          In our considered opinion, the present respondents could not be said
    to be "necessary party" to the suit. Non-joinder of respondents, hence,
C   wo~ld not make a decree passed by the Court of Small Causes, Bombay
    nullity or inexecutable. The High Court erroneously proceeded against the
    well settled principle of law by observing in the impugned judgment that
    since the respondents (petitioners before the High Court) were claiming
    through Papamiya and as they were not joined as 'party' in the suit, the
D   orders passed by the court "would in no way affect or bind them". The
    above observatiQn, in our opinion, did not lay down the law correctly.

          Since the respondents were not necessary parties, it was not incumbent
    on the plaintiffs to join them in the suit. The defendants appeaa:d through
    an advocate and the decree was passed as their advocate withdraw his
E   appearance. Even thereafter, S.K. Shaikh Ahmed and others claiming to
    be heirs of Papamiya filed a Writ Petition against the decree passed in RAE
    Suit No. 1992 of 1977, and even that petition was dismissed. In the
    circumstances, in our opinion, the High Court was wrong in interfering
    with the decree passed by Small Causes Court, Bombay and confirmed by
F   the appellate bench of that court. The order passed by the High Court,
    therefore, deserves to be set aside.

       For the reasons aforesaid, the appeal deserves to be allowed and is
  accordingly allowed. The judgment and order passed by the High Court
G in Civil Writ Petition No. 3384of1986 is set aside and the decree passed
  by the courts below is hereby restored. Interim stay granted earlier stands
  vacated. In the facts and circumstances of the case, however, there shall
  be no order as to costs.

    N.J.                                                        Appeal allowed.