JWALA PRASAD Vs. DIPTY GOPE

JUDGEMENT

(1.) This application by the plaintiff/decree holder/petitioner is directed against an order dated the 7th December, 1983, holding that the miscellaneous case No. 30/83 filed by the judgment-debtor in Execution Case No. 5 of 1983 was maintainable.

(2.) On the facts of the case, whether the defendants/judgment-debtors were entitled to take an objection in the exection case that they were protected under the Bihar Debt Relief Act, 1976 (being 'Scheduled debtors') and whether the executing court could go behind the decree and hold that the plea of 'Scheduled debtors' could be taken at any time are the significant questions to be decided in the present application.

(3.) The learned counsel for the plaintiff/decree-holder/petitioner has submitted that in the facts of the present case the executing court could not go behind the decree and the executing court has not only acted illegally in exercise of its jurisdiction but has also acted with material irregularity. The learned counsel for the petitioner has further submitted that the impugned order also suffers of jurisdictional error. On the other hand, the learned counsel for the defendants/judgment-debtors/opposite party has submitted that the objection, as taken in the instant case, could be taken at the execution stage and the court below was perfectly within its jurisdiction to hold that the objection taken at the execution stage was tenable and that the miscellaneous case was maintainable.