Dinesh Kumar Singh, J. - (1.) The present writ petition under Article 227 of the Constitution of India has been filed to set aside the order dated 1.1.2019 passed by the IInd Additional District Judge/Special Judge (SC/ST) Act, Lucknow in Civil Revision No.84 of 2017 filed by the petitioner feeling aggrieved by the order passed by the Additional Civil Judge (Senior Division), Lucknow on 31.5.2017 in Misc. Case No.245 of 2016, whereby the executing court had dismissed the objections of the defendant/judgement debtor filed under Section 47 C.P.C.
(2.) The petitioner is the tenant/judgement debtor in a suit for possession and damages being Regular Suit No.167 of 1999. The trial court decreed the suit on 31.5.2011. Aggrieved by the aforesaid judgement and decree, the petitioner/defendant filed first appeal bearing no.140 of 2011 in the court of Additional District Judge, Court No.17, Lucknow, which too was dismissed vide judgement and order dated 19.3.2016. After the judgement and decree, the decree holder has filed Execution Case No.10 of 2011. The petitioner has filed Second Appeal No.260 of 2016 before this Court along with an application for condonation of delay. In the execution case, the judgement debtor has filed an objection under Section 47 C.P.C., which was numbered as 245 of 2016. The executing Court vide order dated 31.5.2017 had rejected the aforesaid objection on the ground that the executing court does not have power to go behind the decree and in respect of the question of jurisdiction of the trial court, a specific issue was framed before the trial court as well as before the appellate court and both the courts below have held that the trial court had jurisdiction to hear and decide the suit. It is further held that the second ground that the trial court had passed the judgement and decree on the amended plaint. However, there was no order passed by the trial court to amend the plaint. This ground cannot be looked into at the stage of execution and, therefore, the trial court has rejected the aforesaid objection filed under Section 47 C.P.C. The revisional court has also dismissed the revision by the impugned judgement and order on the ground that the executing court cannot go behind the decree and is not entitled to question that jurisdiction of the court which passed it, unless it is shown that the decree was passed by a court having inherent lack of jurisdiction, which would make a decree nullity. It has further been held that the first appellate court has upheld the judgement and decree including jurisdiction of court and, therefore, the objections filed under Section 47 C.P.C. cannot be entertained and the trial court had rightly rejected that.
(3.) Learned counsel for the petitioner submits that if a judgement and decree obtained by fraud or has been passed by a court which lacks jurisdiction, would be a nullity and the objection regarding the judgement and decree being a nullity, can be taken at any stage including at the time of execution. He further submits that the suit property is of sixty years old, therefore, the provisions of U.P. Act No.13 of 1972 were not applicable and the judgement and decree passed by the trial court, which did not have the jurisdiction, was a nullity. He also submits that the amendment in the plaint was carried out by the plaintiff without there being any order passed by the trial court and, therefore, the judgement and decree which was obtained by the plaintiff was result of fraud by the plaintiff, therefore, it is a nullity.;