An executing court cannot go behind the decree and declared that a decree, even if incorrect in law or on facts, is executable until set aside through proper legal proceedings.

The decree holder in O.S.No.76/87 of the Puthur Civil Judge's Court, South Canara, a private limited company, is the revision petitioner.

2. Its application to execute the decree, it had obtained against defendants 1 to 4 stands dismissed by the order under challenge. According to the court below the decree was null and void as it was one passed without due notice to defendants 2 to 4.

3. I shall now read the relevant portion of the decree:

"The suit coming on the 4th day of December, 1987 for final disposal before me in the presence of the advocates for the plaintiff named above and the defendants 2 to 5 having remained absent and were placed exparte and the first defendant also called out absent and placed exparte and after perusing the affidavit filed by the plaintiff this court doth hereby order and decreed as follows: It

4. The decree sought to be executed, going by the recitals therein, is an exparte decree as against defendants 2 to 4. This exparte decree, the learned counsel for the respondents submits, is null and void as it was passed without due notice to the defendants. Such a declaration can be given by the executing court, the counsel submits and in support of this contention he relied on the following decisions:

L C.A. Govinda Pillai v. Kochukoshi Muthalali Luckose Muthalali (1955 K.L.T. 160).

ii. Bhavan Vaja and others v. Solanki Hanuji Khodaji Mansang and another (A.I.R.1972 S.C.1371).

iii. Paru Lakshmi v. Koma Bharathi & others (1968 K.L.T. 447).

On the other hand the learned counsel for the decree-holder submits that only under certain circumstances the executing court can give such a declaration. Such circumstances, however do not exist here and therefore the order of the court below declaring that the decree is incapable of execution as it is void, is liable to be set aside.

5. The short question thus arising for consideration is, Has the executing court power to declare a decree null and void; and if that is possible, what are the circumstances under which such a declaration can be given.

6. Has the executing court the power to declare that a decree is null and void is no more a moot question in view of the decision of the Supreme Court in Hiralal v. Kalinath ( A.I.R.1962 S.C.199). In the same strain is the decision of the Supreme Court in V.D. Modi v. Rajabhai Abdul Rehman and others ( A.I.R.1970 S.C.1475). The real question therefore is what are the circumstances under which an executing court can declare a decree null and void. It should in this connection be remembered that an executing court while executing a decree cannot go behind the decree. It shall execute the decree as it stands. The executing court cannot also entertain the argument that the decree sought to be executed was incorrect in law or on facts. That means a decree even assuming that it is incorrect in law or on facts is executable until it is set aside, by a proper proceeding in appeal, revision or other proceedings provided for under the Civil Procedure Code. Regarding the circumstances that should be taken into account to declare a decree null and void, it is enough if I extract the following observations made by the Supreme Court in V.D. Modi's case.

"When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an executing proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing cou