A decree passed without establishing the grounds for eviction can be considered a nullity and can be questioned under section 47 of the Code of Civil Procedure.

The petitioner obtained an ex parte ejectment decree against the opposite party in Ejectment Suit No. 34 of 1971 in the Court of the learned Judge, 2nd Bench, City Civil Court, Calcutta on 28th of August, 1974. The suit was filed on the grounds of default, sub-letting and also for reasonable requirement. Against the said ex parte decree the opposite party started a Miscellaneous Case No. 843 of 1974 under the provision of Order 9, Rule 13 read with section 151 of the Code of Civil Procedure for setting aside the said ex parte decree but the same was dismissed on contest on 9th September, 1976 which order also affirmed by this Court in F. M. A. No. 284 of 1977. The said ex parte decree was subsequently put into execution. The opposite party filed objection under section 47 read with section 151 of the Code of Civil Procedure and that gave rise to Miscellaneous Case No. 377 of 1981. It was contended by the opposite party in his said objection under section 47 of the Code of Civil Procedure that the said ex parte decree was a nullity as the Court had not come to any finding at all as to whether any of the alleged grounds for eviction as made in the plaint had been proved and as such the said decree was passed without jurisdiction. The learned Munsif by the impugned order allowed the said Miscellaneous Case No. 377 of 1981 filed by the opposite party and against the said order the petitioner has moved this Court in revision and obtained the present Civil Order.

2. Mr. Mitra, learned Advocate for the petitioner, contended that even if the ejectment decree had not said in so many words about the existence of any of the grounds for eviction under West Bengal Premises Tenancy Act, from the evidence adduced by the plaintiff in the suit which resulted in the said ex parte ejectment decree, it can be safely concluded that the trial court was satisfied about the existence of a ground for ejectment and as such the trial Court's decree cannot be said to be a nullity merely on the ground that it had not expressly come to any finding regarding existence of any such ground. Mr. Mitra, further contended that in the circumstances of the present case it could not be said that the court in passing a decree in question was lacking any inherent jurisdiction. The Court had jurisdiction to pass the decree in question and even though the decree passed may not be legal, the Executing Court can not be refused to execute the decree on the ground that the decree was passed in violation of any law. At best the decree passed by the trial Court may be stated to be an illegal decree but that cannot be a ground for agitation in an objection under section 47 of the Code of Civil Procedure.

3. The learned Advocate for the opposite party, however submitted that if in passing an ejectment decree the Court does not come to any finding regarding the existence of any ground under section 13(1) of the West Bengal Premises Tenancy Act, 1956, the decree passed by the Court should be treated as a nullity being without jurisdiction and that could be a question to he gone into under section 47 of the Code of Civil Procedure and in support of his said contention he referred to the decision in (1) Shibapada Roy Chowdhury v. Sudhangshu Kumar Sen reported in AIR 1980 Calcutta 19 and further submitted that the facts of that case fits in exactly with the facts of the present one and in view of the said decision the executing Court can go behind the decree in deciding the executability of the decree while deciding an objection under section 47 of the Code of Civil Procedure if the Court was not satisfied about the existence of any ground under section 13(1) of the said Act.

4. Considering the submissions of the learned Advocates for the respective parties and also considering carefully the decision of the trial Court in passing the ex parte decree in question it cannot be said that the learned Judge of the Court below did take into consideration at all the evidence adduced by