Judgement

KHALID, J. :- Special leave granted.

2. This is an appeal by special leave against the Judgment and Order dated 5-1-1987, of the High Court of Madhya Pradesh, Bench at Indore, in Civil Revision No. 382 of 1986, by which the High Court affirmed the order dated 28-11-1986 of the District Judge Ujjain in Civil Execution Case No. 1249/86, filed by the respondent against the appellant.

3. The appellant is a textile undertaking at Agar Road, Ujjain. The Madhya Pradesh Government enacted the Madhya Pradesh Sahayata Upkram (Vishesh Upbandh) Adhiniyam, 1978 (No. 32 of 1978), for short the Act, with the object of giving relief to sick undertakings. Relief was given to the appellant-company first by notification No. F17-87-79-XI-B-1, dated 15-11-80, extended from time to time by subsequent orders, the relief so given to continue till 15-11-1987.

4. The respondent filed a summary suit against the appellant in the Bombay High Court on its original side, as summary suit No. 124/86, claiming a decree for Rs. 12,12,327.50, with interest and costs. The appellant did not contest the suit. The suit was accordingly decreed. The respondent got the decree transferred for execution to the District Judge, Ujjain, on 26-9-1986 and then applied for execution of the decree. The appellant resisted execution by filing objection pleading that it was a relief undertaking under the Act, the benefits under which Act were available till 15-11-1986 at the time the objection was filed (now up to 15-11-1987) and that the decree could not therefore be executed against it in view of the bar contained in S. 5 of the Act. The respondent admitted the appellant to be a relief undertaking. however, it was contended that the District Judge had no jurisdiction to entertain any objection to the execution of the decree, validly passed by the Bombay High Court. The Execution Court, it was contended, could not go behind the decree and the decree mandated execution on its terms.

5. The learned District Judge upheld the contentions of the respondent and held that the appellant could not take advantage of the notifications under the Act because the rights and liabilities of the parties had to be determined by the transferee Court in accordance with the substantive law bearing on the question in the court that passed the decree. He further held that the execution of the decree could not be challenged before the transferee Court unless it was shown that the transferor Court had no jurisdiction to pass the decree. The objection of the appellant was thus rejected.

6. The appellant thereupon filed a revision in the High Court. The High Court rejected the revision and affirmed the order of the District Judge. Hence this appeal.

7. The questions of law raised before us are as follows :

(a) Whether on a true construction of S. 5 of the Act, execution of the ex parte decree obtained by the respondent against the petitioner at Bombay can be instituted, commenced or proceeded with by the respondent against the petitioner, even though the petitioners textile undertaking is admittedly a State Relief Undertaking under the Act?

(b) Whether S. 5 of the aforesaid Act is substantive law or procedural law?

8. The High Court considered this question and held that there was no bar against execution of the decree after considering the effect of S. 5 quoted above on the general law governing decrees and their execution as provided in the Civil Procedure Code. The High Court relied upon the settled position that the executing Court cannot go behind the decree even if it is erroneous on law or on facts. We extract below the finding, by the High Court against the appellant in para 20 :

"It may be stated that it was perhaps due to the position of the law as propounded in the Delhi decision that the suit in the Bombay High Court was not contested by the petitioner. With the determination of the rights of the parties by the Bombay High Court according to the substantive law applicable to the State of Maharas