AMA LONE Vs. RADHA KRISHEN

JUDGEMENT

(1.) THIS revision petition is directed against an order of the learned District Judge, Pulwamma, dated 17 -3 -83 deciding the preliminary issue raised in the suit against the petitioner

(2.) IT transpires from a perusal of the record that a decree for a sum of Rs. 20,000/ - was passed against the plaintiff -respondent by the District Judge, Anantnag on 23 -8 -1979. The plaintiff -respondent thereafter, filed a suit for declaration that the decree passed by the District Judge, Anantnag, on 23 -8 -1979 against him in the suit titled Mst. zebi Vs. Redha Krishen was invalid and a nullity. The challenge to the decree in the suit was on the basis that it has been passed 11 favour of a dead person and it had been passed in violation of the mandatory provisions of law. The petitioner -defendant raised a preliminary objection to the maintainability of the suit. It was contended that the contentions in the suit related to the execution, satisfaction, or discharge of the decree and these contentions could be disposed of in the execution proceedings and not through a separate suit. The learned District Judge, Anantnag did not find any force in the preliminary objection on the ground that the case of the plaintiff -respondent in the suit was not only that the impugned decree was a nullity, for having been passed in favour of a dead person, but that it was also invalid on the ground that it had been passed in violation of the mandatory provisions of law. The learned District Judge found that the questions raised in the suit impeaching the validity of the decree did not necessarily relate to the execution satisfaction, or discharge of the decree and that a separate suit was maintainable.

(3.) I have heard learned counsel for the parties. The perusal of the record show that the pleas which have been raised in the suit challenging the decree passed by the District Judge Anantnag on 23 -8 -1979 are required to be adjudicated upon only after the parties are given opportunity to lead evidence. The learned District Judge, in my opinion, was perfectly justified in deciding the preliminary issue in the manner in which he did It is settled law that the executing court, whether it is the court passing the decree itself or the court to which the decree has been transferred for execution, cannot go behind the decree to examine for itself whether the decree is valid or not. Whether a decree is a nullity or not for having been passed in favour of dead person or having been passed in violation of the mandatory provisions of law, are questions which do not relate to satisfaction, discharge, or execution of a decree and, therefore, are not matters which can be adjudicated upon by the executing court. The remedy available to a party questioning the decree on those grounds, is by way of a separate suit and in the instant case, it was the separate suit which was filed by the plaintiff -respondent. Since, the contentions raised in the suit filed by the plaintiff - respondent do not fall within the ambit and scope of section 47 C P. C. it is obvious that a separate suit to determine those contentions is not only competent but is the proper course to be adopted by the plaintiff -respondent.