A decree for eviction passed in violation of Section 5(1), Proviso (e) of the Assam Urban Areas Rent Control Act, 1972 is not executable.

JUDGMENT:- This appeal is by the judgment-debtor and arises out of an execution case.

2. The material facts are as follows :

The respondent (Plaintiff-decree holder) obtained an ex parte decree in the Court of the Munsiff, Goalpara, in Title Suit No. 401 of 1967 for eviction of the appellant from, and recovery of khas possession of, certain house and premises situated in the Bongaigaon town in the District of Goalpara and also for rents at the rate of Rs. 200/- per month. The respondent filed Title Execution Case No. 17 of 1972 in the Court of the Munsiff, Goalpara, for the execution of the said decree. The appellant filed an objection under Section 47 of the Code of Civil Procedure (hereinafter called the Code) against the execution of the decree. His objection was that he had never agreed to pay to the respondent rent at the rate of Rs. 200/- per month; that he had filed Misc. Case No. 7/67 against the respondent in the Court of the Munsiff for fixing fair rent and the Munsiff fixed fair rent at Rs. 65/- per month; and that he paid the rents in full at the rate of Rs. 65/- per month from May, 1967 to October, 1972 by challans into the Treasury and issued notices to the respondent to withdraw the amount. He further alleged that the respondent concealed all these facts from the knowledge of the Court and fraudulently obtained the ex parte decree. He pleaded that the decree was null and void and as such inexecutable.

3. The respondent filed a rejoinder to the appellants objection. He did not deny the allegations made by the appellant in his objection to the execution of the decree. His plea was to the effect that in the executing Court the judgment-debtor could not challenge the decree obtained by him in Title Suit No. 401/67.

4. The executing Court in its order has referred to the evidence of P. W. 1, who was the appellant himself, and P. W. 2. P. W. 1 deposed that he had agreed to pay house rent at the rate of Rs. 150/- per month to the respondent from 1966 on the condition that the godown would be made pucca and a sanitary latrine would be constructed and that in total he paid to the respondent Rs. 1,900/- as house rent at the rate of Rs. 150/- per month and he was granted receipts for the payments but, as the respondent demanded rent at the rate of Rs. 200/- per month, he made an application before the Munsiff for fixation of fair rent and obtained an order from the Court fixing fair rent at Rs. 65/- per month. P. W. 2 was a neighbour of P. W. 1 carrying on business in the vicinity of the appellant. He deposes that he saw the appellant paying rents at the rate of Rs. 150 per month. The appellant, however, did not produce in Court the order of the Munsiff fixing fair rent at the rate of Rs. 65/- per month, as alleged, and deposed to by the appellant, nor did he produce receipts showing payments of rents as alleged and deposed to by him, and, as such, the executing Court rejected the appellants case, holding that the executing Court could not go behind the decree. The appellant filed an appeal before the District Judge, who upheld the order of the executing Court, and held that the executing Court could not go behind the decree.

5. Dr. J.C. Modhi, learned Advocate-General, Assam, appearing for the appellant, submits that the decree sought to be executed is a nullity, not being in conformity with proviso (e) to sub-section (1) of Section 5 of the Assam Urban Areas Rent Control Act (hereinafter called the Act). On the other hand, Shri J.N. Sarma, learned counsel appearing for the respondent, submits that an executing Court cannot go behind the decree, and, as such, the orders of the learned Courts below are valid.

In support of his contention, learned counsel for the respondent, relies on AIR 1949 PC 8 and AIR 1951 SC 189. In AIR 1949 PC 8, their Lordships of the Privy Council have held :

"An execution Court cannot go behind the decree and question its correctness; but when the decree is silent, and gives no indication as to