Smt. Rama Rani Khanna and another vs Smt. Pritam Kaur and anothers

J.V. Gupta, J.—The Judgment-debtor petitioners have filed this petition against the order of the executing Court dated 18.1.1980 whereby their objection-petition was dismissed.

On August 2, 1975 the decree-holder respondents Smt. Pritam Kaur etc, filed the suit for ejectment and recovery of rent against Ravi Khanna (now deceased). In the written statement filed on his behalf, one of the preliminary objections was that the premises were constructed and let in, in 1969 and as such, the same were not exempt from the application of section 13 of the East Punjab Urban Rent Restriction Act, 1949 Consequently, one of the issues framed in the suit was, "whether the present suit is barred by Act III of 1949?" Later on, the defendant absented himself and allowed the suit to proceed exparte against him. On December 3, 1977, the trial Court decreed the plaintiffs'' suit and passed a decree for ejectment in her favour against the defendant. The application for setting aside the ex parte decree filed on behalf of the judgment-debtors was dismissed on December 24. 1979 and the appeal against the same was also dismissed on June 5, 1980. When the decree holder sought the execution of the ejectment-decree, objections were fifed on behalf of the judgment-debtors on March 2, 1978. On the pleadings of the parties, the executing Court framed the following issue on March 31, 1978: --

Whether the decree passed in favour of the D.H. is inexecutable? OPJD

Many opportunities were granted to the judgment-debtors to bring their evidence in support of the issue, but neither she herself came into the witness-box, nor did she produce any evidence, with the result that the decree-holder also did not produce any evidence. By the impugned order, the executing Court dismissed the objection petition on the ground that in the suit itself, this issue was struck and from the judgment, it is clear that the property in dispute wag held to be exempt from the provisions of the East Punjab Urban Rent Restriction Act, 1949 and the executing Court could not go behind the decree. Dissatisfied with the same, the judgment-debtors have come up in revision in this Court.

The learned counsel for the petitioner contended that the decree passed by the Civil Court, being without jurisdiction the executing Court could go behind the decree and the same was not executable as such According to the learned counsel the premises in dispute were rented out on June 1, 1970 to one Piara Singh and since the suit was filed in August, 1975, i.e. more than 5 years thereafter the same was not maintainable in the Civil Court on the basis of the exemption claimed by the decree holder. In support of his contention, he referred to Kiran Singh and Others Vs. Chaman Paswan and Others, , Seth Hiralal Patni Vs. Sri Kali Nath, and Sunder Dass Vs. Ram Prakash, . On the other hand, the learned counsel for the decree-holder submitted that this very objection was taken by the judgment-debtors in the written statement in the civil suit and they themselves did not lead any evidence in support of their case and consequently, it was decided against them. The same objection cannot be allowed to be taken now again in the execution proceedings. In these circumstances the executing Court cannot go behind the decree. Even their application for setting aside the ex parte decree was dismissed and an appeal against the same was also dismissed by the appellate Court Moreover, no evidence was led by the judgment debtors even in the executing Court in support of the issue and they cannot be allowed to bring any evidence for the first time in the revision petition Since the question of jurisdiction depends on certain facts which the judgment-debtors failed to prove in the suit and also in their objection petition in the executing Court, they cannot be allowed to agitate the same again on new facts for the first time in this revision petition. According to the learned counsel, their whole conduct is to delay the proceedings. The decree was passed on December 31 1977 and uptil now, they have not delivered the possession in execution thereof.

I have heard the learned counsel for the parties at great length and have also gone through the authorities relied on by the learned counsel for the petitioners.

It cannot be disputed that this very objection as to the jurisdiction of the Civil Court was taken in the civil suit itself and a specific issue was framed by the trial Court The defendant in the suit suffered an ex parte decree for the reasons best known to him In these circumstances, the judgment debtors could not be allowed to take the same objection in the executing Court To that extent it has been rightly held by the executing Court that it could not go behind the decree The jurisdiction of the Civil Court is not a matter which can be decided on the facts admitted. It was a question of fact, as to whether the notification under which the premises were exempted for five years was applicable or not. Admittedly no evidence was led by the judgment-debtors in support of their objection-petition in the executing Court. The proposition that the executing Court can go behind the decree if it is without jurisdiction is not applicable to the facts of the present case and therefore, the authorities relied upon by the learned counsel for the petitioner are distinguishable. The whole conduct of the judgment-debtors speaks for itself. The whole effort is to delay the execution for one reason or the other. There is no illegality or error of jurisdiction as to be interfered with in the exercise of revisional jurisdiction. Consequently, the revision petition fails and is dismissed with costs. Costs assessed at Rs. 500/- only.