RAMCHANDRA GOVIND THOWARE Vs. JAYANTA RAVJI PARAWAT

JUDGEMENT

(1.) In this case a decree was passed on a private award directing the judgment- debtor to pay the decree-holder Rs. 900 by annual instalments of Rs. 100 each. It also directed that in case two instalments were in arrears, the decree-holder should recover the whole sum at once by sale of two lands belonging to the judgment-debtor. Default having been made the decree-holder filed a Darkhast for the recovery of the whole sum. The judgment-debtor contended that before the award was made which resulted in the decree in question, the decree-holder agreed to advance him Rs. 200 as a fresh loan and that that sum was included in the total of Rs. 900. He thus practically said that as Ramchandra, the decree- holder, had not paid him Rs. 200 as agreed, the decree was vitiated by fraud. The trial Judge came to the conclusion that it was not open to the judgment-debtor to raise this contention in the case. He also found that it was not proved that the decree-holder had agreed to advance the judgment-debtor Rs. 200 or that that sum was included in the decretal amount. He, therefore, directed that execution should proceed.

(2.) In appeal both these findings were reversed, the learned Judge coming to the conclusion that the judgment-creditor agreed to advance Rs. 200 to the judgment- debtor as consideration for his consenting to a decree passed in terms of the award. He also came to the conclusion that the award was a bogus one, and that therefore the Court had, on the true state of facts coming to its notice, the power to vacate the decree passed on such a bogus award and to prevent the abuse of the process of the Court. The Judge therefore vacated the decree, reversed the decree of the lower Court and dismissed the plaintiffs application with costs through-out.

(3.) Whatever powers the Court had to decide questions relating to the execution of the decree, we are of opinion that it is perfectly clear that the Court had no power to deal with the decree itself. The Court executing the decree cannot deal with the question whether the decree, should stand or whether it should be set aside on any of the grounds on which a decree can be set aside. In Chintaman Vithaba v. Chintarnam Bajaji (1896) I.L.R. 22 Bom. 475 it was held that the validity of a decree where execution is sought cannot be disputed in execution proceedings under Section 244 of the Civil Procedure Code. It will be noted that in this case all that the judgment-debtor pleaded was that he had not received the Rs. 200 additional advance which was the inducement held out to him to consent to the decree for Rs. 900 instead for Rs. 700. But the learned appellate Judge went a great deal further than that and dealt with the question whether the Court which passed the decree on the award was justified in so doing. It is quite true that cases have been known where a money-lender as a condition for advancing money induces his borrower to consent to a bogus award on which a decree is passed. It may be that in this case this particular award decree was passed by means of such an arrangement. But whether that was so or not, it is perfectly clear that the executing Court had no jurisdiction to deal with the question, and the only question with which it had f jurisdiction to deal with was the question whether the Darkhast should proceed.