S.S. Chadha, J.
(1) In a civil suit before High Court parties entered into a compromise on 19-8-71 and a decree was passed on 22-8-71. Decretal sum was agreed to be paid in Installments. After some payment there was default and D.H. applied for execution. J.D.'s raised objections and claimed that the decree was passed by fraud. Issues were framed and the case was set down for recording of evidence. D.H. then made an application that decree cannot be questioned in execution proceedings and also that evidence was not necessary. After narrating above facts, judgment para 4 onwards is :
(4) Mr. R.L. Aggarwal, had contended that the objections under section 47 of the Code of Civil Procedure can only relate to the execution, discharge or satisfaction of the decree ; in other words the question as to the correctness or validity of the decree cannot be gone into in execution proceedings. According to him, the question as to the validity of the decree is not one in execution, or about the discharge or satisfaction of the decree and can be gone into only by way of a separate suit and not in execution proceedings. However, an exception has been made, urged the counsel that the validity of a decree can be challenged in execution proceedings when the ground is that the Court which passed the decree was lacking in inherent jurisdiction. The objections which impeach the decree itself, are not one relating to the inherent lack of jurisdiction of the Court. In support of his contentions, the learned counsel relied on Hira Lal Patni vs . Sri Kali Nath, : 2SCR747 wherein it was held :
'......THEvalidity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizein of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it.'
Reliance is also placed on A. Venkateseshayya v. A. Virayya Air 1958 Ap 1 (......)
(5) The counsel contended that the objectors are not questioning the inherent jurisdiction of the Court in passing the decree in the suit; the challenge of the objectors is that the decree was obtained on the basis of the compromise dated August 19, 1972, which compromise was obtained by misrepresentation or fraud. These question do not. according to counsel, relate to the execution of the decree but relate to impeaching the decree itself.
(6) My enquiry in the present application is only limited to the question whether the judgment debtors can challenge in the execution proceedings, the validity of the decree passed on the basis of the compromise dated 19, 1972, on the ground that the compromise was obtained by making mis representation and hy playing fraud upon them. The general rule is that an Executing Court cannot go behind the decree, it must take the decree as it is and must proceed to execute it. It must take the decree according to its tenor ard cannot entertain any objection that the decree is incorrect in law or in facts. The function of the executing court is to enforce and execute the decree ard not to question its correctness, There is, however, a well established exception that if there was lack of inherent jurisdiction in the Court which had passed the decree, then the decree is a nullity and the executing court has to refuse its execution. The Supreme Court in Hira Lal v. Sri Kali Nath's (supra) case had clearly laid down that the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction was illustrated as when the court could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction for that the defendant was dead at the time the suit had been instituted or decree passed. Again, in Vasudev vs. Rajabhai : 1SCR66 the Supreme Court pointed out that a decree may be a nullity, for instance, where it is passed without bringing the legal representatives on the record of the person who was dead at the date of the decree or against a ruling prince without a certificate. An executing court may go behind a decree when a personal decree has been passed against the legal representative of a deceased debtor in respect of the debt due from the deceased. The court in such a case would be lacking in inherent jurisdiction to pass a decree beyond the estate of the deceased debtor in the hands of the legal representative. The decree may be a nullity on the ground of lack of pecuniary jurisdiction of the Court over the subject matter of the suit. The validity of the decree may be questioned on the ground that the decretal court had no jurisdiction personal to it. An ejectment decree cannot be passed against a tenant unless the Court is satisfied that one or more of the grounds mentioned in the relevant Rent Control Act exist. Decree passed by a court in ejectment suit in terms of the compromise, without satisfying itself if the grounds for eviction existed, would be a nullity and cannot be executed. An ejectment decree passed on the basis of an award which is made a rule of the Court, would again be a nullity and the executing court would been entitled to ignore the decree and refuse to execute it In case. where exclusive jurisdiction is vested in the court of Rent Controller to pass a decree or order for ejectment, the decree passed by a Civil Court would be a nullity and the executing court would be entitled to go into its validity. But all these instance relate to the inherent jurisdiction of the court. There is a clear distinction between the existence of the jurisdiction and the manner of exercise of that jurisdiction. The ground of objection which has the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it, can only be considered in the execution proceedings.
(7) The question whether the compromise deed was obtained from the defendant judgment-debtors by mis-representation or fraud is not one which relates to the inherent jurisdiction of the court. The executing court has no jurisdiction to go into the question whether the compromise agreement on which the decree was based was valid or binding on the judgment-debtors, for that would be defeating the decree on the allegation that it was obtained by fraud. If the consent to the compromise deed was obtained by fraud or misrepresentation, the agreement is still a contract but voidable at the option of the parties whose consent was so obtained. The contract continues to be valid till the defrauded party elects to avoid it. There was no rescission of the compromise till the date of passing of the decree and the court could validly act on that compromise and pass a decree. Under Order 23 Rule 3 of the Code of Civil Procedure, the Court had jurisdiction to pass a decree where it was proved to the satisfaction of the Court that the suit has been adjusted by any lawful compromise. Compromise is an adjustment of the controversies in the suit by mutual concession. The court could not be said to be lacking in inherent jurisdiction, it is acting upon a compromise which had not been rescinded, even if it is assumed that it was obtained by misrepresentation or fraud. The decree is not a nullity but might at best be invalid. A valid decree cannot be challenged in the execution proceedings. The consent/compromise decree being only the contract between the parties with the seal of the court super-added to it, a suit may lie to set aside that decree on any of the grounds on which the contract is voidable such as fraud or misrepresentation, but such a question cannot be raised in the Executing Court. The questions relating to mis-representation or fraud do not relate to the execution of a decree but relate to impeaching the decree itself; as being voidable or void having been obtained on a compromise which itself was obtained by fraud or misrepresentation. It amounted to a plea that the decree was voidable or even void or that it was wrongly passed by the Court. Again if the question of want or absence of jurisdiction cannot be determined without an amount of research, the executing court is not competent to permit that enquiry to be made which would require the court to take evidence. Section 47 of the Code of Civil Procedure is not intended to be used for the purpose of investigating matters relating to the validity of the decree itself when on the face of it there is nothing illegal about the decree. 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 the decree had no jurisdiction to do so. The executing court can only go into the question whether or not the decree is a nullity, where on the face of the decree it is apparent that the court passing the decree had no jurisdiction or there are patent reasons for doubting the inherent jurisdiction of the Court. 'When a decree is made by a Court which has no jurisdiction to make, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record'. Where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which would have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.' (See V.D. Modi vs. Abdul Rehman and others (Supra). The questions relating to the obtaining of the compromise by fraud and misrepresentation, thereforee, do not relate to the execution of the decree and are thus outside the scope of the objections under section 47 of the Code of Civil Procedure.