GIRDHARI LAL Vs. MADAN LAL

JUDGEMENT

(1.) This civil revision puporting to have been presented under section 115 of the Code of Civil Procedure is directed against an order of the learned District Judge Simla, dared 10th May, 1967, allowing an appeal from the order of the learned Senior Subordinate Judge, disallowing objections under section 47, Code of Civil Procedure, presented by the judgment-debtor and holding that the executing court could not go behind the decree. The objections were on this ground held not to be maintainable. I am informed that this was done at the preliminary stage without issuing notice to the decreeholder.

(2.) On an appeal having been taken before the the learned District Judge, the lower Appellate Court agreed with the view of the law that an executing Court cannot go behind the decree and enter into the controversy as to whether the relief granted under the decree arose out of the suit or was outside the scope of the suit A decree having been granted, the executing Court, even, according to the learned District Judge, was to execute it as such. The learned District Judge also agreed with the submission of the decree-holder that it was incorrect to say that the decree could not he executed because it contained any directory clause necessitating further enquiry or investigation. But suprisingly enough, after having so held, the learned District Judge proceeded to observe that according to the judgment debtor, the Iicence granted in fauoar of the decree-holder Girdbari Lal has since been cancelled by the Municipal Committee and the judgment debtor had been granted a fresh licence and for this reason the plea of non executabilitv of the decree required adjudication, and on this premise the case was remanded back to the executing Court with a direction that these proceedings be converted into a suit and the Municipal Committee be also im leaded as a party. I may here point out that the controversy relates to some. stall of which the Municipal Committee appears to have grinted alicence to the decree holder. There was apparently a kind of a partnership entered into between the decree holder and the judgment debtor, but the disputes having arisen, the matter was taken to Court in the form of a suit which resulted in a compromise decree, one of the terms of the decree being that the stall would be handed over by the judgment debtor to the decree-holder. It was in execution proacedings of this decree that the Judgment-debtor raised a number of objections which have given rise to the present proceedings in this Court.

(3.) On behalf of the decree-bolder, it has been very strongly argued that there was nothing wrong with the order of the learned Senior Subordinate Jndg coming to the conclusion that an executing Court is not empowered to re-open the decree or to go into the merits of the decree. The only function which the executing Court had to perform was to execute the decree as framed. This submission is unexceptionable, for, in execution proceedings, the question us to whether the view of the Court passing the decree is right or wrong, is no longer open. This position has been settled since a long time on high authority both of the Prive Council and of the Supreme Court. The only ground on which an executing can go bebind the decree is if the same can be shown to be a nullity in the sense of having been made by a Court possessing no inherent jurisdiction, That undoubtedly is not the case here. It is of course trne that an executing Court can go into the question whether a decree as framed, is or is not executable. But on that point, even the. learned District Judge has held against the judgment-debtor the judgmentdebtor has, however, tried to reopen thit finding, to which I will advert a little later.