1. These two revisions arise out of the order of the Subordinate Judge of Tiruchirapalli in E.A 408 of 1979 in E.P 210 of 1978. The first respondent in the execution application is the revision petitioner in C.R.P 4544 of 1982 while the heirs of the deceased second respondent in the execution application are the revision petitioners in C.R.P 4545 of 1982.
2. The first respondent in the execution application, who is the revision petitioner in C.R.P 4544 of 1982, filed the suit in S.C 315 of 1975 against the petitioner in E.A 408 of 1979 and the respondents 3 to 6 therein and obtained a decree. In execution of the said decree the house property of the defendant was brought to sale and purchased by the second respondent in E.A 408 of 1979 whose heirs are the revision petitioners in C.R.P 4545 of 1982. Long after the execution sale and delivery of property to the auction purchaser, the first defendant filed this application in E.A 408 of 1979 for declaring the decree in S.C 313 of 1975 null and void and unenforceable. He contended that the defendants were debtors and no decree could have been passed against them on 13th November, 1975 in view of the fact that the Tamil Nadu Act 16 of 1975 was in force. The application was contested, by the plaintiff and the auction purchaser. But, the learned Subordinate Judge accepted the plea of the petitioner and allowed E.A 408 of 1979. Hence these revisions. The petitioner in E.A 408 of 1979 died subsequently and his heirs have also been impleaded in these revisions as respondents.
3. The learned Subordinate Judge has allowed the E.A No. 408 of 1979 on the ground that the Tamil Nadu Act 16 of 1975 was a bar to the institution of the suit against the defendants on 13th November, 1979 and the decree was therefore a nullity. The Tamil Nadu Act 16 of 1979 has nothing to do with any debt or moratorium in filing of suits. It pertains to the amendment of the Electricity Act. The Court below has not even looked into the Act 16 of 1975 and considered to what matter it pertains.
4. The learned counsel for the contesting respondents would contend that what was meant was not the Act 16 of 1975 but Act 10 of 1975, i.e The Tamil Nadu Indebted Agriculturists (Temporary Relief) Act 10 of 1975. S. 3 of the said Act lays down that no suit for the recovery of a debt shall be instituted against any agriculturist in a civil court before the expiry of one year from the date of the commencement of the Act. The Act came into force on 16th January, 1975 and it therefore follows that no suit could be filed against an agriculturist between 16th January, 1975 and 1th January, 1976. This suit in S.C 315 of 1975 has been filed and decreed during the period when the Act was in force. It is, therefore, claimed that the decree is a nullity.
5. But, in order to entitle the defendants to the benefits of this Act, they must be agriculturists entitled to the benefits of the Act. There is no averment in the petition filed in E.A 408 of 1979 that the defendants are agriculturists entitled to the benefit of the Act. Nor has the petitioner let in any evidence, oral or documentary, to substantiate the claim that the defendants are agriculturists entitled to the benefits of the Act. Hence, the conclusion of the court below that the suit in S.C 315 of 1975 was barred against the defendants in view of the Act 10 of 1975 is untenable.
6. Assuming without admitting that the defendants are agriculturists entitled to the benefit of the Act 10 of 1975, the question is whether the decree passed in this suit is nullity and whether the executing court is entitled to go behind the decree and question its legality. Ordinarily an executing court cannot go behind a decree and canvass its legality or correctness. But, where the decree sought to be executed is on the face of it a nullity for want of jurisdiction or other like causes, this question can certainly be entertained and gone into by the executing court. There is, however, a clear distinction between an inherent want of jurisdiction in a court and want of jurisdiction on grounds which require determination by the Court itself. This is not a case where the court which passed the decree in S.C 315 of 1975 suffered from any inherent want of jurisdiction. This is a case where the court which passed the decree is said to have had no jurisdiction to entertain the action because of the Moratorium enacted in Act 10 of 1975. The question whether the Moratorium law applied to a defendant in a suit is a matter which has to be determined by that court itself and not by the executing court. The defendants having remained absent and failed to raise this plea, it is not open to them to canvass the question of execution. This aspect of the matter has also not been considered by the learned Subordinate Judge.
7. In the result, the revisions are allowed and the order of the Subordinate Judge, Tiruchirapalli in E.A 408 of 1979 is set aside. There will be no order as to costs.
VCS.
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