A decree cannot be challenged at the stage of execution on the ground that it is incorrect in law or on facts.

Brishketu Saran Sinha, J.

1. This appeal by the plaintiff-decree-holder arises from an order passed on 20th April, 1982, in Miscellaneous case No. 26 of 1981 under Sec. 47 of the Code of Civil Procedure by Shri S.N. Pathak, Additional Subordinate Judge, Second Court, Patna.

2. The relevant facts are that the plaintiff-decree-holder is admittedly owner of a house bearing holding No. 522/294, plot No. 257 (A) C of ward No. 12 of the Patna Municipal Corporation in mohalla Saidpur, Rajendra Nagar. On 1st March, 1972, the plaintiff-decree-holder who now, for the sake of convenience, shall be referred to as the appellant, let out the first floor of the aforesaid house for residence to the defendant-judgment-debtor, hence, afterwards referred to as the respondent, on a monthly rent of Rs. 190. On 1st January, 1973, the appellant also let out the ground floor of the house to the respondent, except for a garage and two rooms, on a rent of Rs. 700 per month for residence. Rents in accordance with the aforesaid rates were paid till December, 1973, and thereafter were not paid from January, 1974. It is also alleged that some-time in the year 1974 or 1975 the respondent started running school and a hostel in the building. Therefore, on 1st December, 1975, the appellant filed a suit for eviction and arrears of rent which was then Rs. 22,750 which was numbered as Title suit No. 263 of 1975 of the court of 1st Subordinate Judge, Patna. The grounds for eviction were default in pay me at of rent, breach of terms of tenancy and personal necessity as well. On 9th August 1976, the defendant filed a written statement denying all the allegations and in which probably a plea was also taken that there was no relationship of landlord and tenant between the parties. On 6th January, 1977, the defence against eviction was struck out as the defendant-respondent had not deposited the arrears of rent and was not paying the current rant although directed to do so. Ultimately, on 26th August, 1980, an ex-parte decree for eviction and arrears of rent was passed in which all the pleas of the appellant were upheld. No appeal was filed against that decree. However, an application under order IX Rule 13 of the Code of Civil Procedure was filed by the defendant which was dismissed on 16th January, 1981. On 30th April, 1981 the application to recall the order dated 16th January, 1981 was also dismissed. Aggrieved by that order the respondent filed Civil Revision No. 813 of 1981 before this Court which was also dismissed in limine on 22nd July, 1981.

3. In the meantime the appellant levied Execution case No. 11 of 1980 for execution of the decree passed on 26th August, 1980, in Title suit No. 260 of 1975. On 20th July, 1981, the defendant-judgment debtor filed an application under Sec. 47 of the Code of Civil Procedure which was numbered as Miscellaneous case No. 26 of 1981 in which the plea taken was that the decree was a nullity on the ground that relationship of landlord and tenant did not exist between the parties and also on various other issues. On a consideration of the matter, the learned 2nd Additional Subordinate Judge, by the impugned order, upheld the contention of the defendant-judgment debtor and hence this appeal.

4. The learned Additional Subordinate Judge, by the impugned order, held that as there was no relationship of landlord and tenant between the parties, no order could be passed for the eviction of the respondent under the Act. He has further held that this issue should have been framed and decided in the light of the evidence adduced by the plaintiff, even though it was ex-parte and hence it was held that the decree was unexecutable and a nullity. In coming to this conclusion reliance was placed by the court below on a decision of the Supreme Court in Smt. Kaushalya Devi and Ors. V/s. K.L. Bansal -- .

5. It is settled law that a court, executing a decree cannot go behind the decree between the parties or their representatives. The decre