The executing Court cannot challenge the validity of the decree, but a third party not being a party to the decree against whom an order is served can challenge the validity of the order.

JAHAGIRDAR, J. :- The facts out of which this application arises are simple and undisputed.

2. Opponents Nos. 1-3 filed Suit No. 733 of 1944 in the Small Causes Court at Poona against opponent No. 4 who is an employee of the Madras and Southern Mahratta Railway on a monthly salary of Rs. 32 to recover a sum of money. In the said suit a decree by consent of parties was passed on 5th June 1944. The decree is in the following terms :

"The defendant should pay Rs. 90 and all costs of the suit to the plaintiff at Rs. 2 instalment per month. The plaintiff is at liberty to recover his amount from the salary of the defendant at Rs. 2 per month by an attachment to that effect."

Opponents 1-3 applied the execution of the said decree and prayed for an order directing the applicant, i.e., M. and S.M. Railway Company, to withhold Rs. 2 every mouth from the salary of opponent No. 4 until the decree was satisfied on the basis of the consent decree and to remit the same to the Court. The Court issued the order of attachment on 9th September 1944. The applicant thereupon filed Miscellaneous Application No. 136 of 1945 in the Small Causes Court at Poona praying for raising the said attachment and vacating the said order on the ground that it was contrary to S. 60(i), Civil P.C., and S. 23, Contract Act, and also S. 6(f), T.P. Act. The executing Court, however, held that it cannot go behind the consent decree in execution proceedings and dismissed the application with costs on 31st August 1946. Being aggrieved by the said order the applicant has come in revision under S. 25, Provincial Small Causes Courts Act.

3. Mr. Adarkar the learned advocate for the applicant contends that the Small Causes Court had no jurisdiction to pass a decree in terms of the compromise as it offended against the provisions of S. 60(i), Civil P.C., and S. 23, Contract Act and that the decree was therefore, unlawful, and that this question can be gone into even in execution proceedings. He relies upon the case of Lakshmanswami Naidu v. Bangamma, 26 Mad. 31 and the case of Prem Parkash v. Mohan Lal, ILR (1944) 25 Lah 379 : (AIR (30) 1943 Lah 268 FB). The point whether the executing Court can go behind the decree and question the jurisdiction of the Court that passed the decree is not free from difficulty. In Jagannath v. Shivnarayan, 38 Bom LR 1023 : (AIR (24) 1937 Bom 19), a Division Bench of this Court has held that "an executing Court bas no right to question the jurisdiction of the Court passing the decree." Mr. Adarkar wants to get over this difficulty by suggesting that the rule may hold good in decrees obtained after contest and not in decrees passed in terms of compromise, His argument is that a contract between the parties is not the less a contract and subject to the incidents of a contract because there is superadded to it the command of a Judge. If the compromise or contract in the terms of which the decree is passed is shown to be unlawful, the decree itself becomes unenforceable and the validity of such a decree can be challenged in execution. The decision in Lakshmanaswami Naidu v. Rangamma, 26 Mad 31, referred to above supports such a contention.

4. On the other hand, it is urged by Mr. B. Moropanth, the learned counsel for the opponents, that the moment a decree is passed in terms of compromise, the latter ceases to be a contract and is merged in the decree which can be enforced at the will of the decree holder. The executing Court cannot be allowed to exercise the appellate powers over the decree of the Court (that passed the decree), and in support of this contention he relies upon the case of Ambalal Chunthabhai v. Somabkai Bakorbhai, 45 Bom LR 1045 : (AIR (31) 1944 Bom 46), and the decision of N.J. Wadis, J., in Magniram v. Khandu (C.R.A. No. 446 of 1941, dated 20th July 1942). But it is not necessary in this case to decide this point of competency of the executing Court to question the validity of the decree in execution proceedings. The princip