1. The respondent applied to the District Munsif of Negapatam to exercise his inherent power under Section 151, Civil Procedure Code, and stop a sale in execution of the decree in O.S. No. 53 of 1928.
2. The District Munsif found that the application was neither bona fide nor founded upon fact and dismissed it.
3. The District Judge, East Tanjore, has ordered further inquiry into the question whether 1st defendant was a lunatic and underrepresented at the time of the passing of the decree.
4. The auction-purchaser appeals on the ground that an executing Court cannot go behind the decree, and is not concerned with discovering whether in passing the decree the Trial Court acted according to law.
5. It is an accepted principle that the executing Court cannot go behind the decree. To employ other words but the same metaphor, it must take the decree at its face value. It can, inquire whether the Court as evidenced on the face of the decree by seal and signature was a properly constituted Court competent to pass the decree, but it need not inquire, having satisfied itself of the competence, whether it is a decree which the Court ought to have passed. For such an inquiry it would obviously be necessary to go behind the decree.
6. This is clearly laid down in Kalipada Sarkar v. Hari Mohan Dalai I.L.R. (1916) 44 C. 627 and by a Bench of five Judges in Gora Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) 53 C. 166. The Full Bench lays down the principle thus:
Where the decree presented for execution was made by a Court which apparently had no jurisdiction, whether pecuniary, territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it.
7. The word 'apparently' here is important, and is a third way of expressing the same principle by the same metaphor, being synonymous with 'on its face' or 'without going behind'. Kalipada Sarkar v. Hari Mohan Dalai I.L.R. (1916) 44 C. 627 has been questioned in Jungli Lall v. Laddu Ram Marwari (1919) 4 Pat.L.J. 240. On page 247 it is observed that 'that which is void can be treated as non-existent,' and 'the executing Court is not bound to take notice of that which is a nullity although it may take the form of a decree'. This proposition in the abstract is unexceptionable, and if a decree is apparently a nullity, so that without going behind it, the executing Court can see from its face that it is void, the executing Court is not bound to execute it. But in the vast majority of cases, and in the case now tinder appeal, the decree is not on its face void, and the executing Court has no ground for doubting its validity unless it goes behind it. In fact, the order appealed against is a direction that the executing Court shall go behind it, and take evidence, not to discover whether the Trial Court was, within its jurisdiction, able to pass this decree, but in order to discover whether it ought to have passed this decree. That the executing Court can hold no such inquiry is precisely laid down in 44 Cal. at pages 636-7. The passage from 'the substance of the matter' to 'improperly made' is one which in my opinion and with all respect cannot be improved upon.
8. In Subramania Aiyar v. Vaithinatha Aiyar I.L.R. (1913) 38 M. 682 the case relied upon by the learned District Judge, it is held that a question of nullity is an objection to the jurisdiction of the Trial Court to pass the decree, and therefore one that can be rightly raised in execution. The Calcutta Full Bench probably had this case in mind when it emphasized the distinction between having no jurisdiction and acting erroneously within jurisdiction, (Gord Chand Haldar v. Prafulla Kumar Roy I.L.R. (1925) 53 C. 166.)
9. In Arnnachalam Chetty v. Abdul Subhan Sahib (1925) 50 M.L.J. 232 the learned Judge declines to interfere by way of revision in a Small Cause Suit citing Kalipada Sarkar v. Hari Mohan Dalai I.L.R. (1916) 44 C. 627 and Jungli Lall v. Laddu Ram Marwari (1919) 4 Pat.L.J. 240 and observing that arguments might be put forward on either side.
10. The question is really one of forum, and it is not as though the aggrieved party had his only remedy in the Court of execution. That is made plain in the passage already referred to in Kalipada Sarkar v. Hari Mohan Dalai I.L.R. (1916) 44 C. 627. In such matters of procedure it is highly advisable that the Courts should follow uniform practice. The High Court of Calcutta has exhaustively examined all the authorities, citing between twenty and thirty cases, and by a Bench of five Judges has laid down a rule which conforms with the universally recognized principle. That is high authority with which this Court would hesitate to disagree. I, therefore, accept the law as laid down in Kalipada Sarkar v. Hari Mohan Dalai I.L.R. (1916) 44 C. 627 and allow this petition.
11. The order of the District Judge is cancelled. The District i Munsif must proceed with the execution.
12. Costs to petitioner.