A question of nullity of a decree cannot be agitated in execution proceedings, but only by means of an appeal against the decree.

JUDGMENT :- This is an appeal of the plaintiffs. The order challenged is the order of the District Judge, Panaji, dated February 12, 1974. By the said Order, the decree which was obtained by the plaintiffs in the trial Court was set aside by the lower appellate Court.

2. The plaintiffs who are the present appellants have filed a suit against Arjun Parshekar for obtaining the vacant possession of a kitchen wherein the defendants were residing. During the pendency of the suit, Arjun died. The plaintiffs made an application to bring his widow Shantabai who is the respondent No. 1 and his daughter Premabai, respondent No. 2, on record as party defendants. A notice was served on Shantabai and Premabai to appear and show cause why they should not be impleaded as defendants. Shantabai received the notice, but did not appear in Court. Premabai appeared and submitted to a decree on behalf of herself and her mother Shantabai upon time being given to them to vacate the premises. An order was accordingly passed. Thereafter a decree was drawn against Shantabai and Premabai evicting them from the premises. Execution of the decree was then applied for by the plaintiffs. Shantabai resisted the execution on the ground that the decree was not binding on her because she had not authorised her daughter to submit to a decree. The application of Shantabai objecting to the execution of the decree was dismissed by the learned Senior Civil Judge, Mapusa. Premabai did not resist the execution. There is nothing on record to show that Shantabai had given the authority to Premabai to submit to a decree. The fact however remains that Shantabai was served, but did not remain present on the day on which the decree was passed.

3. The argument of Shri Pinto de Menezes, learned advocate for the defendants is that the decree having been passed in terms of a compromise to which Shantabai was not a party, the decree is void and inoperative in law as far Shantabai is concerned. On behalf of the plaintiffs it is argued by Shri Prabhu, their learned advocate, that the decree was not passed on a compromise. Assuming without admitting, Shri Prabhu states, that the decree was a compromise decree, what was challenged in the Execution proceedings was the validity of the decree itself. Such a challenge could not be taken in Execution proceedings.

4. There is a decree of the Court against the two defendants. The defendant No. 2 Premabai does not challenge it. Shri Pinto Menezes, learned advocate for the defendant No. 1 states that the question raised by the defendant No. 1 is a question raised not as a third party but as a party to the suit. A question raised by a party to the suit can be raised in execution only if it relates to the execution, discharge or satisfaction of the decree within the meaning of Section 47

of Civil P. C., 1908. The question involved in the present context is as to the nullity of the decree on the ground that the decree is based on a compromise to which the defendant No. 1 was not a party. Such a question is not a question relating to the execution, discharge or satisfaction of the decree. It is a question of nullity of the decree, pure and simple. A question of this type can be agitated only by means of an appeal against a decree and not in execution proceedings. I am fortified in my view by the ruling of the Andhra Pradesh High Court in A. Venkatasheshayya v. A. Virayya, AIR 1958 Andh Pra 1 (FB). That was a decision of a Full Bench. Their Lordships held in that case that the question raised by the plaintiffs did not relate to the execution of the decree for they attacked the decree itself on the ground that it was void Subba Rao, C. J. who spoke for the Court referred to the correct principle stated by Suleiman, C. J. in Mahabir Singh v. Dip Narain Tewari, (AIR 1931 All 490) (FB), where the learned Judge observed:

"I am therefore clearly of opinion that where the question is either that a decree was passed against a dead person or was not passed again

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