- (1.) THIS is a revision against an appellate order of Collector, Tonk dated 9. 7. 56 reversing the order of the Tehsildar in a case relating to removal of encroachment upon Sarkari Parat Land.
(2.) WE have heard the learned counsel for the parties and have examined the record as well. A simple legal point in involved for decision in the case and it is this : "whether the court which is called upon to execute an order can go behind it and refuse to execute it if the order is found to be without jurisdiction. " To appreciate this point, the facts of the case may be stated briefly. A complaint was filed by one Chhotu Balai against Ramchandra to the effect that he had erected a Kham compound wall and had thereby encroached upon Sarkari Parat Land. Ramchandra pleaded that he was living with the permission of Bhanwarlal and that the construction complained against was made by Bhanwarlal. Bhanwarlal admitted having made the construction but pleaded his own property in the land. Kesarlal also applied for being made a party to this proceeding on the ground that a Pacca house was in the vicinity. After necessary inquiry, the Tehsidar imposed a fine of Rs. 11/-upon Bhanwarlal for taking possession of another's Kham house. Kesarlal appealed to the Assistant Collector who inspected the site and passed an order directing demolition of the newly constructed wall, resumption of the Kham house and imposition of a fine of Rs. 11/- upon Bhanwarlal. An appeal was filed before the Collector who upheld the decision of the Assistant Collector. The case came up in revision before the Board The learned Membsrs of the Board who heard this revision were of the opinion that resumption of the Kham house was not justifiable and to that extent to orders of the lower courts were set aside. As regards demolition of the construction and imposition of the fine the decisions of the subordinate courts were however confirmed. Thereupon Shri Bhanwarlal filed a writ petition before the hon'ble High Court of Judicature for, Rajasthan which was decided on 17. 2. 55. Their Lordships were pleased to observe that "no law or regulation provided for the imposition of a fine and to that extent the order of the Board was 'set aside. As for demolition of the construction it was observed by the hon'ble High Court that Bhanwarlal lead a claim to the proprietary interest in the land in dispute and the same depended upon proof of facts and hence it was held that a regular suit can provide an adequate and efficacious remedy in the circumstances of the case. On behalf of the Government an undertaking was given before the hon'ble High Court that execution proceedings of the order would not be carried out till the expiry of the period of notice under Sec. 80, C. P. C. so that Bhanwarlal may have an opportunity to serve the Government with a notice in case he desired to file a suit. On 27. 10. 55 Kesarlal applied to the Tehsildar for demolition of the wall on the strength of the decisions of the Board and the hon'ble High Court. The Tehsildar directed demolition by his order dated 29. 12. 55. An appeal was filed against this ¦order before the Collector who in view of the observations of the Board contained in Kesarlal vs. Chhaganlal (1955 RRD 203) held that the order of the Tehsildar directing demolition was illegal and consequently set aside the same. Kesarlal has come up in revision against this order. His contention is that the Tehsildar was bound to execute the order as it stands as it is a well-settled principle of law that no executing court can go behind the decree. On behalf of the opposite party it has been replied that the executing court can examine as to whether the court which passed the order had jurisdiction in that behalf or not and if it is found that the order was without jurisdiction, execution can be refused. On behalf of the applicant note 8 sec 38 ,chitley's C. P. C. page 501 (1950 edition) has been cited, wherein it has been laid down that the jurisdiction of the court executing a decree must be determined with reference to the directions contained in the decree, as the executing court has no power to question the legality or correctness of the decree. But in this very note itself it has been laid down at page 506-507 that a question as to the jurisdiction of the court in matters rendering the decree a nullity may be entertained even by the executing court. We may also refer to AIR. 1956 Bombay 268 in this connection. The following observations of their Lordships of the Supreme Court were relied upon by the Bombay High Court in this case. "it is a fundamental principle that a decree passed 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 " It therefore, follows clearly that if the decree is apparently without jurisdiction then it would not be enforced in execution proceedings. This is the crucial test which would govern the point at issue As held by the Board in the case relied upon by the Collector, executive authorities can discharge those functions or wield those powers only which are vested in them by the Legislature. In the absence of any such executive decisions like removal of encroachments upon Government land by administrative orders can find no sanction in the eye of law. The learned Collector, therefore, was justified in holding that the order being apparently without jurisdiction was not capable of execution There is no substance in this revision which is hereby rejected. .;