R.P.Singh - (1.) THIS Writ Petition is directed against an order passed by the Xlth Additional District Judge, Agra, dated 18-4-1985, allowing the revision and remanding the case to the Judge Small Causes Court, Agra to decide the issue regarding the question of jurisdiction of the Judge Small Causes Court to pass the decree which was sought to be executed in execution proceedings.
(2.) BRIEF facts of the case are that suit no. 1108 of 1976 was filed by the petitioner in the court of Judge, Small Causes Court, Agra, for ejectment and arrears of rent against the contesting respondents which was decreed in terms of the compromise between the parties on 10th of March, 1981, under which the plaintiff was to make construction at the cost of defendant no. 1 in accordance with the plan given by the defendant no. 1, approved by the Agra Development Authority and on completion of the construction the defendant was to occupy a portion of the said construction and on failure of the defendant to vacate the portion in his possession, the plaintiff was entitled to eject the defendant from the portion in his possession. According to the petitioner since the defendant failed to comply with the terms of the compromise, he applied for execution of the decree by ejectment of the defendant. Various objections were raised by the defendant under section 47 CPC and the Judge, Small Causes Court, respondent no. 2, however, rejected the objection and allowed the decree to proceed for execution vide his order dated 17-1-1985. Feeling aggrieved the respondents no. 3 and 4 went up in revision before respondent no. 1 where it was urged that since the tenancy of the defendant was, according to the amendment in the plaint, in respect of a big open courtyard with a 'phatak', it was not in respect of any building as contemplated by U. P. Act XIII of 1972 and hence the Judge, Small Causes Court had no jurisdiction to entertain the suit and pass the decree which was thus a nullity and passed without jurisdiction on the own showing of the plaintiff in the plaint. It was further urged on behalf of the respondents nos 3 and 4 that the compromise decree was nullity as the compromise for the eviction of the tenant was in violation of the provisions of U. P. Act XIII of 1972 and the compromise does not indicate that the tenant expressly or impliedly allowed the decree to be passed for his eviction because the landlord in the circumstances was entitled to have such a decree under the law. The respondent no. 1 being satisfied that the point raised by the Respondents no. 3 and 4 went to the root of the jurisdiction, the objection to its validity could be allowed to be raised in an execution proceeding and hence remanded the case to the Judge Small Causes Court, respondent no. 2, to apply its mind and decide these issues after setting aside the order passed by the Judge Small Causes Court. It is this order of remand that is challenged in the present writ petition. Heard Sri Swami Dayal, Senior Advocate for the petitioner and Sri B. D. Mandhyan, Senior Advocate for the contesting respondent.
(3.) THE learned counsel for the petitioner submitted that the revisional court could not go behind the decree in execution proceedings. He also submitted that the question regarding the jurisdiction of the decree sought to be executed having not been raised earlier, it could not be allowed to be raised for the first time in revision. It was further contended that the compromise decree could not be challenged except on the ground of fraud. On the other hand, the learned counsel for the respondent submitted that the decree sought to be executed being a nullity and without jurisdiction, the objection regarding the jurisdiction of the court which goes to the root of the matter, has rightly been allowed to be raised by the revisional court. It was further submitted that since the compromise decree does not indicate either on its face or in the background of other material that the contesting respondents expressly or impliedly agreed to suffer the decree for their eviction because the landlord was entitled to have such a decree under the law, and further that the compromise decree was passed in violation of the provisions of U. P. Act XIII of 1972 as it was not passed on one of the grounds mentioned under section 20 of the Act, the decree was a nullity, and hence when the question raised goes to the root of the jurisdiction, it has rightly been allowed to be raised in revision. It was further submitted that it is a case of remand only where the case has been remanded to the Judge Small Cause Court to apply his mind and decide the issue regarding the jurisdiction of the Judge Small Causes Court to pass the decree which was sought to be executed, it is not a fit case for interference under Article 226 of the Constitution. The learned counsel for the petitioner in support of his submission that the executing court cannot go behind the decree relied upon V. D. Modi v. R. A. Rahman, reported in AIR 1970 SC 1475 where it was observed thus :- "A court executing a decree cannot go behind the decree between the parties or their representative ; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts." Again it was observed by the Supreme Court thus : "Again, when the decree is made by a court which has no jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record ; where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction." The learned counsel thus strenuously argued that it was not open for the contesting respondents to raise the question of jurisdiction in execution proceedings and hence the order of remand passed by the revisional court is liable to be set aside.;