MAGU ROUT Vs. KULAMANI NAIK AND ORS.

JUDGEMENT

(1.) THIS revision is directed against the order of rejection of a petition filed by the Judgment -debtors under Section 47 of the Code of Civil Procedure. Opposite -party Nos. 1 and 2 as Plaintiffs obtained an ex parte decree and executed the same against the Petitioner and opposite party Nos. 3 to 14. In the execution case, objection was taken that opposite party No. 14 is a public deity, but it had not been made a party and the villagers were also not made parties and the' Plaintiffs having taken no action under Section 69 of the Orissa Hindu Religious Endowments Act, the decree cannot be executed by the judgment -debtors. The objection raised by the judgment -debtors has been rejected by the executing Court and hence this revision.

(2.) IT is not disputed that the Plaintiffs (opposite party Nos. 1 and 2) obtained an ex parte decree against the judgment -debtors. The only question canvassed here is that the suit was not maintainable, inasmuch as the Plaintiffs had not taken recourse to the provisions of Section 69 of the Orissa Hindu Religious Endowments Act prior to institution of the suit, as opposite party No. 14 is a public deity. Whether opposite party No. 14 is a public deity or not is a fact to be enquired into and there cannot be presumption on the fact that opposite party No. 14 is a public deity as defined in the Orissa Hindu Religious Endowments Act. It is well settled that the executing Court cannot go behind the decree, unless the decree is a nullity. To put it in other words, if the Court lacks in jurisdiction which goes to the root of the matter and if the decree is against a man who is not in existence, then in that case the decree can be said to be a nullity.

(3.) IF the facts and circumstances of the particular case are considered en the dictum of the Supreme Court and reiterated by this Court, it is clear that the objection of the judgment -debtors has been rightly rejected by the executing Court, There has been no illegal exercise of jurisdiction nor the order suffers from any illegality.