D.K. Seth, J. - (1.) By consent of the parties let this application be treated as on the day's list along with the execution application which is in the list.
(2.) After hearing the respective parties, it appears that an appeal is pending. But the fact remains that there is no order of stay restraining the execution. In the circumstances it is alleged that there is a fraud on the part of the decree holder in obtaining the decree. Mr. Jayanta Mitra, learned Senior Advocate, has vehemently opposed the execution of the decree and pointed out that even under section 47 of the Code of Civil Procedure the question of fraud can be alleged so as to contend that the decree is not executable as against the judgment debtor. I am afraid that such a question can be gone into by this Court in view of the pendency of the appeal where such a question has been raised, pursuant to which permission was granted to adduce additional evidence under Order 41 Rule 26 of the Code of Civil Procedure. The said appeal is pending where all these questions would be gone into. The executing court is not supposed to enter into such question.
(3.) A Court executing a decree cannot go behind the decree. It must take the decree according to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts as between the parties or their representatives, as was held in Basudev v. Rajabhai, AIR 1970 SC 1475 . It cannot go into the question whether the decree was obtained by fraud as was laid down in the decisions in Viswamvar v. Aparnar, 39 CWN 490 FB ; Dattatraya v. Purshattam, ILR 46 Bombay 635 FB ; Sudhindra v. Budan, ILR 9 Madras 80 ; Dhaniram v. Luchmeswar, ILR 23 Calcutta 639 . The executing Court has to have the decree as it stands. It cannot question its legality or correctness or validity. It was so held in Kalipada v. Hari, ILR 44 Calcutta 627 ; Kali v. Bibhuti, 36 CWN 1120 ; Tripati v. Bisweswar, 55 CLJ 114 ; Lakshmi Bai v. Ravji, AIR 1929 Bombay 217 ; Muttiar v. Virammal, ILR 10 Madras 283 ; Jat.. v. Ambika, AIR 1946 Patna 214 ; Revur v. Jurijala, AIR 1948 Madras 397 ; Bank of Bihar Ltd. v. Sarangdhar, AIR 75 Indian Appeal 300: AIR 1949 PC 8 ; Kuver Bank Ltd. v. S, 63 CWN 21 ; Topanmal v. Kundamal, AIR 1960 SC 388 . The only exception that applies to the executing Court is that it has a duty to find out the true effect if the decree. It has to find out the meaning of the words employed in a decree, the Court often has to ascertain the circumstances under which the words came to be used, as was held in Bhavan v. Solanki, AIR 1972 SC 1371 . The other exception as laid down by the Privy Council decision in 1933, which is now a settled law, is that the Executing Court can look into the question as to whether the decree passed by a Court without inherent jurisdiction and is incapable of execution Jnanendra v. Rabindra, AIR 1933 PC 61 . Same has been declared as law by the Supreme Court. It is a fundamental principle well established that a decree by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings Kiran v. Chamen, AIR 1954 SC 340 . The Executing Court is competent to enquire whether the Court which had passed the decree had or had not inherent jurisdiction to pass it Abdul Ghani v. Anjuman, AIR 1942 Lahore 237 . There is no doubt that if a decree in execution is shown to be a nullity the Executing Court can refuse to execute it Bombay Gas Company v. Gopal, AIR 1964 SC 752, 755 ; Basudev v. Rajabhai, AIR 1970 SC 1475 ; Chandrika v. Bhaiyalal, AIR 1973 SC 2391 . However nullity on the ground of lack of territorial or pecuniary jurisdiction of the Court passing the decree cannot be entertained by the Executing Court in view of sections 21 and 93 C.P.C. and section 11 of Suits Valuation Act. The validity of a decree can be challenged in execution only on the ground rendering the Court entirely lacking in inherent jurisdiction: (i) in respect of subject matter of the suit namely when it could not be in cessin of the case the subject matter being wholely foreign to its jurisdiction, or (ii) over the parties to it namely the defendant was dead at the time the suit had been instituted or decree passed, without bringing the legal representative on record, or a decree against an alleged minor who was really major at the time, or when a personal decree is passed against the legal representative of deceased debtor. As provided in section 47 an objection to execution with regard to nullity of a decree is available to the extent as indicated above namely that the decree was passed without jurisdiction. In Basudeva v. Rajabhai, AIR 1970 SC 1475 , it was held that an objection as to a decree being without jurisdiction or otherwise a nullity may be raised in execution proceedings, and that if it is raised, an Executing Court which otherwise cannot go behind the decree, has jurisdiction or is competent to entertain such an objection but this competency is limited to only when the objection appears on the face of the record where the decree is passed without jurisdiction.;