M AND S M RLY Vs. RUPCHAND JITAJI

JUDGEMENT

(1.) The facts out of which this application arises are simple and undisputed.

(2.) Opponents Nos. 1-3 filed Suit no. 733 of 1944 in the Small Causes Court at Poona against opponent No. 4 who is an employee of the Madras & Southern Mahratra Railway on a monthly salary of Rs. 32 to recover a sum of money. In the said suit a decree by consent of parties was passed on 5th June 1944. The decree is in the following terms :

(3.) Mr. Adarkar the learned advocate for the applicant contends that the Small Causes Court had no jurisdiction to pass a decree in terms of the compromise as it offended against the provisions of Section 60(i), Civil P. C., and Section 23, Contract Act and that the decree was therefore, unlawful, and that this question can be gone into even in execution proceedings. He relies upon the case of Lakshmanswami Naidu v. Rangamma, 26 Mad. 31 and the case of Prem Prakash v. Mohan Lal, I. L. R. (1944) 25 Lah. 379: (A. I. R. (30) 1943 Lah. 268 F. B.). The point whether the executing Court can go behind the decree and question the jurisdiction of the Court that passed the decree is not free from difficulty. In Jagannath v. Shivnarayan, 88 Bom. L. R. 1023: (A.I.R. (24) 1937 Bom. 19), a Division Bench of this Court has held that "an executing Court has no right to question the jurisdiction of the Court passing the decree." Mr. Adarkar wants to get over this difficulty by suggesting that the rule may hold good in decrees obtained after contest and not in decrees passed in terms of compromise. His argument is that a contract between the parties is not the less a contract and subject to the incidents of a contract because there is superadded to it the command of a Judge, If the compromise or contract in the terms of which the decree is passed is shown to be unlawful, the decree itself becomes unenforceable and the validity of such a decree can be challenged in execution. The decision in Lakshmanaswami Naidu v. Rangamma, 26 Mad. 31, referred to above supports such a contention.