Bhagsingh Barayamsingh Sikh Judgment-Debtor v. Govindram Haradattarai Marwadi Decree-Holder .

1. This appeal arises out of execution proceedings in civil Suit No. 119 of 1933 decided on 28th March 1934. A consent decree for Rs. 1665 was passed against the appellant in favour of the respondent, Govindram, on 20th March 1934. The amount adjudged by the decree was charged on certain fields including field No. 4 area 25.15 acres and field No. 2 area 0.28 acre which were described as malik makbuza in the application made by the parties for recording the compromise in the suit. The decree-holder applied for sale of the fields and as it was a revenue paying estate the decree was sent to the Collector for execution. The judgment-debtor filed an objection in the executing Court to the sale of the fields on the ground that though they had been described as malik makbuza fields they were in reality occupancy fields. Both the Courts below agreed in holding that the executing Court could not go behind the decree and dismissed the objection as untenable. The argument here turns on the question whether the executing Court has jurisdiction to enquire into the objection of the judgment-debtor that the fields, which at the instance of the parties were entered in the consent decree as malik makbuza, were in truth and in fact occupancy lands. It is now well settled on the authority of 60 Cal. 6701 that if the Court which passed the decree has no inherent jurisdiction, the decree is incapable of execution. It follows therefore that the executing Court had jurisdiction to refuse to execute the decree only when the decree on the face of it appears to be void as being contrary to law. In the present case the antecedent facts relating to the fields are such that it would not be possible to say positively whether in 1934 when the decree was passed the fields were malik makbuza or occupancy. The fields under consideration had once upon a time been held in occupancy right by one Motiram. He surrendered them to Pandu rang who was a cosharer in the village and who in turn on the same day transferred them by a sale deed to the judgment-debtor, Bhagsingh. It was recited in the sale deed that all rights proprietary and possessory which the vendor, Pandurang, had in the fields had been transferred to the vendee, Bhagsingh (judgment-debtor). From the Panchasala Khasra, 1931–1932 to 1935–1936, it appears that Bhagsingh was recorded as a “plotmalik,” that is a plot-proprietor, and not as an occupancy tenant.

2. The question whether it had become the exclusive khudkasht of Pandurang when he obtained surrender of it, or that Pandurang became an occupancy tenant of the land, can be determined on the evidence showing whether the other cosharers of Pandurang acting conjointly accepted him as a tenant of the proprietary body or allowed him to hold the acquired land exclusively as a co-owner as pointed out by Stanyon, A.J.C, in 4 N.L.R 120.2 On that point light is no doubt thrown by the judgment in civil suit No. 65-0 of 1935 which was a suit by the lambardar against Bhagsingh to recover arrears of rent.

3. In that suit it was held that Bhagsingh was an occupancy tenant and not a plot-proprietor of the fields. But that judgment is not relevant against the decree-holder in the present case. The facts detailed above show that without an elaborate enquiry it is impossible for the executing Court to determine whether the lands were held by Bhagsingh in proprietary or tenancy right on the date on which the consent decree had been passed against him. It is therefore clear that it cannot be predicated that the Court, which passed the decree, had no jurisdiction to pass the decree affecting the lands. It may be that on proper investigation the decree may be found to be not according to law in so far as it affects the land under consideration. But that would be no ground for not enforcing the decree inasmuch as a decree, though it may not be according to law, is binding and conclusive between the parties until it is set aside either in appeal or revision: see, 19 Mad. 2493 at page 252.

4. But it is said that it was not a consent decree and that the executing Court had to see whether the agreement on which the decree was based was valid and binding on the parties. The simple answer to that is that what the Court is called upon to execute is not the agreement but the command of the Judge which is superadded to the agreement. It is for the Court passing the decree to consider under O. 23, R. 3 of the CPC, whether the agreement between the parties was in conformity to law or not. Inasmuch as the lands were described as malik makbuza, the Court which passed the decree accepted the agreement as perfectly lawful and recorded the compromise and passed a decree in accordance to it. It may be noted here in parenthesis that the decree was subsequently registered. Much reliance is placed on 20 N.L.R 14 as an authority for the proposition that in circumstances such as the present it is open to the executing Court to go behind the decree. That case is distinguishable. In that case the decree contained a direction for the sale of 0-8-0 share in 26 mango trees in sir field and the judgment-debtor raised the contention that the mango trees standing in a sir field must be deemed to have been held in the same right as the sir field and that therefore they were not liable to be auctioned. In the reported case, 20 N.L.R 1, it appeared on the face of the decree that the mango trees standing on the sir land were not transferable according to law and consequently it was transparent that the Court which passed the decree had no jurisdiction to pass it.

5. The facts of the present case are quite different. Here the fields were described as malik makbuza and the Court which passed the decree took the statements of the parties in that behalf as it was bound to do and there was no dispute between the parties. In the execution proceedings, the judgment-debtor seeks to defeat the decree on the allegation that the fields were, in fact, not malik makbuza but occupancy fields. This is not a plea of law pure and simple but involves investigation into facts and it does not fall within the province of the executing Court to launch upon an elaborate enquiry. There can be no question that the Court executing the decree is not competent to embark on an enquiry into facts which, if established, will tend to show that the Court passing it has no jurisdiction to do so. That proposition is now too well settled to admit of any challenge: see, A.I.R 1933 Nag. 211,5 53 Cal. 166,6 I.L.R (1937) Mad. 329,7 I.L.R (1937) ALL. 761,8 9 Rang. 4809 and 4 Pat. 696.10 The appeal is dismissed with costs.

6. Appeal dismissed.