NARSINGH KALU KALOTA Vs. RAO NIHALKARAN RAORAJA

JUDGEMENT

(1.) THE only question raised in this appeal is regarding the validity of the decree obtained against the appellant by the respondent. The matter arises in execution. The facts are as follows: respondent Nihalkaran obtained a decree for ejectment and arrears of rent in a suit filed in 1951 by him against the appellant. The decree was passed by the trial court in favour of the respondent on 23-9-1953. There was an appeal against that decision and the same was confirmed by the Appellate court on 29-4-1957. The respondent, after the decree was thus confirmed in appeal applied for its execution in the court of civil Judge, Second Class, Hatod. A notice under Order 21, Rule 22, c. P. Code was issued to the judgment-debtor. Thereupon an objection was raised on behalf of judgment-debtor that the said decree in favour of the appellant was null and void as, subsequent to the filing of this suit, the Madhya Bharat Legislature had passed a law known as Madhya bharat Abolition of Jagirs Act, Act No. 28 of 1951 Which came into force on 7-121951. Under the terms of the said Act the decree-holder's rights in the land in dispute as the Jagirdar of the village Hingonia, had come to an end and the said land, situated as it is in the afore-said Jagir village, had stood resumed to the state free of all encumbrance and the judgment-debtor, as the tenant of the jagirdar had by Section 21 of the said Act acquired the status of Pucca Tenant. The court executing the decree rejected this contention on the ground that the said Act had come into force soon after the suit had been filed and long before the decree had been passed by the trial court. The judgment-debtor had not raised any objection regarding the right of the plaintiff to obtain the decree for ejectment against him on that ground either in the trial court or later even in appeal. The objection, regarding the validity of the decree therefore could not be raised in execution. The appellate court confirmed this decision. The judgment-debtor narsingh has preferred this second appeal.

(2.) IT is contended on behalf of the appellant judgment-debtor that ordinarily when a suit is brought by the plaintiff for enforcement of his alleged right as it existed at the date of the suit, it is that right which is determined in the suit in the absence of any amendment in the pleadings of the parties as regards variation or cessation of that right by subsequent change in law. It is therefore open for the judgment-debtor, after a decree in respect of that right is passed against him, to bring to the notice of the executing court that during the pendency of the suit, the right determined has been put an end to by a change in law subsequent, to the date of the commencement of the suit. The Executing court in that event is bound to take notice of such an event which brings an end to the plaintiff's right and refuse to execute the decree. Such a course, it is said, does not amount to going behind the decree. Reliance in this connection is sought to be placed upon the decision of this court reported in AIR 1953 Nag 361 (FB), Chhote Khan v. Mohd. Obedulla Khan, air 1954 Madh-B. 181 (FB), Nabbobai v. Hasan Gani and Civil Misc. Appeal No. 28 of 1959, Maheshprasad v. Shankarrao decided on 2nd February 1961, by this bench.

(3.) ON the other hand it is contended on behalf of the opposite party that the only objection which the executing court can take notice of is the objection as to jurisdiction to the court passing the decree. In such a case the decree becomes null and void and consequently incapable of execution. In any other case the executing court is bound to execute a decree which is not satisfied.