G PALANI Vs. CHINNAMMAL

JUDGEMENT

(1.) THE plaintiff-decree - holder has preferred this civil revision petition against the order dated 14.2.1994 of the Execution Court below, in E.A. No.1005 of 1993 in E.P.No.2996 of 1989 in O.S. No.4388 of 1988. THE said execution application was filed by the judgment- debtor- defendant (respondent herein) praying for dismissal of the abovesaid E.P. No. 2996 of 1989. THE said E.P. was filed by the plaintiff under O.21, Rule 32, C.P.C. for execution of the decree dated 14.12.1988 for permanent injunction against possession- interference, obtained by him in O.S. No.4388 of 1988, by attachment of the defendant's property. THE said decree was no doubt an ex parte decree obtained by the plaintiff, as tenant of the suit property under the defendant, in order to prevent forcible eviction by the defendant. It is represented that in the execution petition, in about October, 1992, counter was filed by the defendant and that even prior thereto, the abovesaid attachment was ordered in the execution petition.

(2.) IN the above circumstances, the abovesaid execution application was filed in February, 1993, while the said E.P. was pending, praying for dismissal of the said E.P. on the ground that the decree is not executable. IN the said E.A. filed under Sec.47, C.P.C, the averments raised by the defendant are: IN or about 10.2.1986, the plaintiff sublet a portion of the suit property to one Sekar for a higher rent and the plaintiff also left the property. But, the plaintiff filed the suit as if he has been forcibly evicted. The said Sekar, when confronted, delivered possession to the defendant in the presence of the plaintiff and also gave a letter to that effect on 1.3.1988. Thus, there was no cause of action for the suit. Further, ex parte decree also was obtained without service of summons on the defendant. Hence, the decree is inexecutable.

(3.) EVEN from the above referred to allegations in the abovesaid E. A., it is clear that is mainly alleged in the said E.A. is that the suit, in which the abovesaid decree has been granted, is without cause of action, and hence the decree is not executable. Such a contention is not open to the defendant- judgment-debtor since the Execution Court cannot go beyond the decree. Only when the decree is a nullity for want of jurisdiction, it can be agitated in the Execution Court, contending that the decree is not executable. The Execution Court cannot entertain any objection that the decree is in correct in law or on facts. The contention that the suit has no cause of action, would only fall under the latter category, viz., that the decree is incorrect in law or on facts and not on the former category that the decree is a nullity, the Court itself having no jurisdiction to pass such a decree.