G. Palani vs Smt. Chinnammal

Abdul Hadi, J.—The plaintiff-decree - holder has preferred this civil revision petition against the order dated 14.2.1994 of the Execution

Court below, in E.A. No. 1005 of 1993 in E.P. No. 2996 of 1989 in O.S. No. 4388 of 1988. The said execution application was filed by the

judgment debtor defendant (respondent herein) praying for dismissal of the abovesaid E.P. No. 2996 of 1989. The said E.P. was filed by the

plaintiff under 0.21, Rule 32, C.P.C. for execution of the decree dated 14.12.1988 for permanent injunction against possession interference,

obtained by him in O.S. No. 4388 of 1988, by attachment of the defendant''s property. The said decree was no doubt an ex parte decree

obtained by the plaintiff, as tenant of the suit property under the defendant, in order to prevent forcible eviction by the defendant. It is represented

that in the execution petition, in about October, 1992, counter was filed by the defendant and that even prior thereto, the abovesaid attachment

was ordered in the execution petition.

In the above circumstances, the abovesaid execution application was filed in February, 1993, while the said E.P. was pending, praying for

dismissal of the said E.P. on the ground that the decree is not executable. In the said E.A. filed u/s 47, C.P.C, the averments raised by the

defendant are: In or about 10.2.1986, the plaintiff sublet a portion of the suit property to one Sekar for a higher rent and the plaintiff also left the

property. But, the plaintiff filed the suit as if he has been forcibly evicted. The said Sekar, when confronted, delivered possession to the defendant

in the presence of the plaintiff and also gave a letter to that effect on 1.3.1988. Thus, there was no cause of action for the suit. Further, ex parte

decree also was obtained without service of summons on the defendant. Hence, the decree is in executable.

In the counter to the said E.A., the plaintiff contended that the said E.A. is not maintainable since the Execution Court cannot go beyond the

decree. It is further averred that the plaintiff was dispossessed by the defendant forcibly, that when the E.P. was filed, the property of the

defendant was attached and that the execution application is not maintainable at a late stage.

Even from the above referred to allegations in the abovesaid E.A., it is clear that is mainly alleged in the said E.A. is that the suit, in which the

abovesaid decree has been granted, is without cause of action, and hence the decree is not executable. Such a contention is not open to the

defendant judgment-debtor since the Execution Court cannot go beyond the decree. Only when the decree is a nullity for want of jurisdiction, it

can be agitated in the Execution Court, contending that the decree is not executable. The Execution Court cannot entertain any objection that the

decree is in correct in law or on facts. The contention that the suit has no cause of action, would only fall under the latter category, viz., that the

decree is incorrect in law or on facts and not on the former category that the decree is a nullity, the Court itself having no jurisdiction to pass such a

decree.

But, the court below in its impugned order has only referred to what has happened prior to the suit and has held that the plaintiff had himself

voluntarily vacated the suit property, presumably on the footing of Ex. A-1, dated March, 1988, which is a letter spoken to in the execution

application, as the letter given by the above said Sekar, giving rise to the conclusion that there is no cause of action for the suit. In fact, the

Execution Court below concludes by saying that the argument of the defendant that the plaintiff could not have secured the decree, is acceptable.

This is nothing, but, Execution Court going beyond the decree, which is not allowed in law, In fact, learned Counsel for the plaintiff respondent

herein could not seriously argue contra.

Accordingly, the impugned order in the abovesaid execution application is set aside, the civil revision petition is allowed and E.A. No. 1005 of

1993 on the file of Execution Court below shall stand dismissed. However, it is needless to observe that the setting aside of the impugned order

will not prevent the Execution Court from dealing with the abovesaid execution petition independently, on its merits, in the light of what is contained

in Order 21, Rule 32, C.P.C. No costs.