RAVI KUMAR GOEL Vs. DHANI RAM

JUDGEMENT

(1.) THE defendant has filed the present revision under Section 115 of the Code of Civil Procedure read with Section 25 of the Provincial Small Cause Courts Act in a suit for ejectment filed by the plaintiff opposite party for arrears of rent and damages before the Judge Small Cause Courts. In that suit the applicant had filed a written statement denying that there was any default. The suit was decreed by the Judge Small cause Courts by his judgment dated 7 -12 -1989 and a civil revision No. Nil of 1990 under Section 25 of the Act was filed in this Court by the defendant applicant and that revision was disposed of by Hon'ble K.C. Agarwal, J. (as his Lordship then was), and the defendant applicant was given three months time to vacate the premises. A certified copy of the said judgment has been furnished before me and I have perused the same. Thereafter the defendant applicant did not vacate the premises as directed in the judgment of this Court dated 1 -3 -1990 rather when the decree was put in execution by the plaintiff opposite -party, the defendant applicant filed an objection stating that a compromise has been arrived at after the judgment to the effect that the tenant, the applicant will pay rent at the rate of Rs. 400/ - since 1 -10 -1989 and both the parties would abide by that compromise. However, the said compromise was denied by the plaintiff opposite -party, stating that it was obtained by fraud and coercion. But the objection before the execution court in proceedings under Section 47 of the C.P.C. (for short the Code) has been rejected and it has been directed by the order dated 26 -4 -1991 that the execution may proceed. Against that order the present revision has been filed. Sri B.D. Mandhyan learned counsel for the applicant urged that the execution court has erred in stating that it could not go behind the decree whereas the compromise was arrived at on 25 -9 -1989 between the parties after the judgment and order of the Judge Small Cause Courts and thereafter the parties agreed that Rs. 400/ - per month as rent would be payable since 1 -10 -1989, hence the application for execution must have been rejected or in any case it must have been decided in terms of the compromise arrived at between the parties. In case some compromise has been arrived at, it was the duty of the execution court to have decided the matter in the light of the, compromise arrived at between the parties. Reliance was placed on Bhavan Vaja & others v. Solanki Haniji Khoda Mansang, : AIR 1972 SC 1371 and Km. Raj Kumari v. Additional District Judge, VI, Lucknow,, 1986 AWC 71.

(2.) THE point for determination in the present revision is as to whether the execution court can go behind the decree. By now it is well settled that normally the execution court cannot go behind the decree. It must take the decree as it stands, it cannot entertain any objection that the decree is incorrect in law or on facts. This proceeds on a simple proposition that unless a decree is set aside in appeal or revision etc., even thought it is erroneous, it is binding on the parties. Section 47 of the Code, however, presupposes existence of a decree which is capable of execution. But this does not apply to a case where the decree may be a nullity. The decree is a nullity when it has been passed by a court having no jurisdiction or against a dead person. In case a decree is passed without jurisdiction it is not a decree in the eyes of law and falls outside the scope of Section 47 of the Code. It can, however, be said that the execution court in certain exceptional circumstances can ascertain and go behind the decree just with a view to' ascertain as to whether the decree is nullity or has been passed by a court without jurisdiction or the same has been passed against a dead person. For the decree to be without jurisdiction the court passing the decree must have inherent lack of jurisdiction which is to be distinguished from the lack of territorial or pecuniary jurisdiction. But the execution court cannot certainly go into the question of correctness or legality of a decree. It can certainly ascertain as to whether the decree is a nullity or it -has been passed against a dead person. (See : 1954 (1) S.C.R. 117).

(3.) IN Bhavan Vaja & others v. Solanki Haniji Khoda Mansang, (supra), their Lordships of the Supreme Court have observed under para 19 as follows: