The executing Court cannot go behind the decree and question its validity.

Venkatasubba Rao, J.

1. This appeal raises the difficult question as to the power of an executing Court to pronounce upon the validity of the decree which it is called upon to execute. In this case, on behalf of the minor third defendant, it was contended, that as he had been represented in the suit by his father whose interest was adverse to his own, the decree passed was a nullity and could not therefore be executed. This point was taken at the stage of execution and the lower Court held that it has no power to go into that question. The correctness of this view is challenged before us and we have had long and learned arguments on the point.

2. I do not think I can do better than refer at the very outset to the oft-quoted case of Kalipada Sarkar v. Hari Mohan Dalal I.L.R. (1916) 44 Cal. 627. The decree in that case was one passed against a lunatic represented by a minor as his next friend and the learned Judges rightly treated that decree as a nullity. That being granted, the question arose whether an objection to its validity could be raised in proceedings in execution : Mukerji and Cuming, JJ., held that the Court executing a decree must take the decree as it stands and has no power to go behind it or to entertain an objection to its legality or correctness. They observe that the right principle is, that a proceeding to enforce a judgment is a collateral and not a direct proceeding and therefore no enquiry into its regularity or validity can be permitted in such a collateral proceeding. In Zamindar of Ettiyapuram v. Chidambaram Chetty (1920)39MLJ203 though it must be observed that the case was one under Section 21, Civil Procedure Code and the point did not directly arise, Sir John Wallis, C.J., delivering the judgment of the Full Bench, refers to the Calcutta case just quoted and approves of the principle it laid down (see P. 687). In Sami Mudaliar v. Muthiah Chetti AIR1923Mad212 the validity of a decree was challenged in a regular suit, on the ground that on the date it was passed, the defendant had died and his legal representative had not been brought on the record. It was contended before the High Court that the proper way of impeaching the decree was to raise the question in execution and that the regular suit did not therefore lie. The learned Judges repelled this argument, citing Kalipada Sirkar v. Hari Mohan Dalal I.L.R. (1916) 44 Cal. 627 and Zamindar of Ettiyapuram v. Chidambaram Chetty (1920)39MLJ203 . They declare:

It seems therefore clear that as far as this Court is concerned, the executing Court cannot go behind the decree.

3. It is worthy of note, that although the decree there was a nullity having been passed against a dead person see Khiarajmal v. Daim (1905) L.R. 32 IndAp 23 I.L.R. 32 Cal. 296 the learned Judges held that the executing Court could not go behind it. The reason given in the two Madras cases cited above for holding that the objection could not be taken in the executing Court, is different from what was given in the judgment of the Calcutta High Court. In Kalipada Sarkar v. Hari Mohan Dalal I.L.R. (1916) 44 Cal. 627 the view of the learned Judges was based not on a narrow but upon the general ground, namely, that an execution proceeding is one to enforce a judgment, that is to say, such a proceeding is collateral to the judgment and therefore no enquiry into the validity of the judgment should be permitted in such a proceeding. But in the two Madras cases referred to above, although the same conclusion was reached, the reason given was, that Section 47 Civil Procedure Code was a bar to the question of the validity of the decree being decided in execution and therefore a regular suit would lie. With great respect, there is a fallacy underlying this argument. Section 47 merely enacts that certain questions shall be determined by the executing Court and not by a separate suit; it does not profess to lay down what the questions are that an executing Court shall not go into. Mahabir Singh v.