- (1.) This revision has been filed against an order of the Tehsildar Sanganer dated 20.8.55 which on being translated into English runs as below : - - "As per orders of Nazim Jaipur D/ - 2.5.47, the defaulter should deposit the amount." In order to appreciate the validity or otherwise of this order we have looked into the record of the case. It appears that on 14.1.45, a report was lodged with the Tehsildar to the effect that the applicants had cut down trees from Govt. land and sold them for Rs. 700/ - without permission. The Tehsildar thereupon made enquiries and passed an order on 22.3.45 imposing a fine on the defaulter and also directed that they should be charged the price of the trees removed by them at the rate of one round per rupee. An appeal was preferred to the Nazim who remanded the case for further enquiry. The Tehsildar again confirmed his previous order a d submitted the case to the Nazim for sanction on 30.3.46. The papers somehow remained unattended for about a year and on 2.5.47 the Nazim agreed with the proposal of the Tehsildar. The file went back to the Tehsildar of recovery of the dues from the applicants. The amount of fine imposed on them was deposited but they resisted the recovery of the price of trees from them. A formal application was put by them on 6.7.56 before the Tehsildar in which it was alleged that there was no provision of law under which the Nazim or the Tehsildar could order the recovery of the price of the trees, in addition to fine which had already been deposited by the defaulters. This application was summarily rejected by the Tehsildar on 20.8.56 which is the order challenged before us is revision.
(2.) The contention of the learned counsel for the applicant is that under sec. 49 of the Jaipur Tenancy Act, 1945 which had come into force when these proceedings were a foot in the lower courts the tehsildar was competent only to impose a fine upto Rs. 50/ - on persons who cut trees in contravention of the said Act. It is urged that there is no provision of law under which an order for the recovery of the price of such trees could be given. It was further argued that in the absence of any provision of law if a court gives an order it is incapable of being executed and the recovery cannot be made from the applicants even if the matter was not challenged in appeal or revision at the proper time. It is also contested that the learned Nazim who finally approved the order of the Tehsildar did not even give an opportunity to hear applicants. In the light of this discussion it was urged that the order given by the learned Nazim which is being executed against the applicants being a nullity inasmuch as it directed the recovery of the price of trees for which no provision of law existed in the Jaipur Tenancy Act. they could agitate the matter before the tehsildar who was executing this order of Nazim. In support of this reliance was placed on A.I.R. 1957 p. 131 (Rajasthan)* in which the following observations were made : - - "The general rule is that an executing court cannot go behind a decree. It must take the decree as it is and proceed to execute it. The decreed may not have been correctly passed or it might be erroneous or not according to law ; but it is none -the -less binding and conclusive as between the parties unless it is set aside on appeal, revision or other proper proceedings. The function of the executing court is to enforce and not to question its correctness. To this general rule however there is well -established exception that if there was lack of inherent jurisdiction in the court which had passed the decree or for some other reason the decree is a nullity, the executing court must refuse to execute it. It is a question for consideration in which case a decree can be held a nullity by the executing court. It appears that the executing court has this power." Applying this rule of law to the present case we find that the date on which the Tehsildar or even for the matter of that the Nazim ordered the recovery of the price of trees from the applicants there was no law in force in the State of Jaipur except sec. 49 of the Jaipur State Tenancy Act which empowered a tehsildar to impose a fine. The order of the Tehsildar as well as that of the Nazim about recovery of the price of trees therefore appears to be illegal and it was within the competence of the executing court namely the Tehsildar to have gone into the matter however limited his powers may be, and dispose of the application presented to him by the applicants in which they had emphatically urged that the order being a nullity could not be executed against them. A similar view was held in R.R.D. 1957, p. 85 wherein a Division Bench of this Board relying on 1956 Bombay 268 and 1955 RID. 203 held that "it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity can be set up whenever and wherver it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. The learned Govt. Advocate however urged that as the order saddling the applicants with a liability to pay the fine as well as the price of trees was passed by the Nazim as late as 2.5.47, the applicants if they were aware of the facts that it was without jurisdiction should have got it corrected by filing an appeal or revision as the case may be and the fact that they did not choose to do so at the proper time does, not justify this court to revise the aforesaid order at such a belated stage. R.R.D. 1957, p. 85 referred to above is a complete answer to this argument. The other contention of the learned counsel for the applicant that the Nazim decided the case without hearing the applicants is to our mind not every convincing because the tehsildar had conveyed the substance of the proposal made by him to the applicants and if they did no choose to file objection before the Nazim it was in our opinion not necessary for the Nazim to summon them again. We do not think that the principles of natural justice namely that a person should not be condemned without being heard were violated in these proceedings.
(3.) In the light of the above discussions we arrive at the conclusion that as the order given by the Nazim was clearly in contravention of the provisions of law in force on the date when it was given, it is incapable of being executed tin so far as the recovery of the price of trees is concerned, even if no appeal or revision was filed by the apli -cans to set it aside. They have every right to challenge the validity during the execution proceedings against them. Taking this aspect of the matter into consideration the order for recovery of price of trees is illegal. It is therefore set aside and the application allowed.;