H. R. KRISHNAN, J.

( 1 ) THIS is a second appeal in execution by the judgment-debtor in a mortgage decree for a sum of the order of 2000/ -. from. the concurrent judgments that the executing Court is rot competent at this stage to go behind the decree and hold it to be illegal and inoperative. The only question is whether at this stage the decree is found to be so patently illegal for want of jurisdiction or for some other reason that the executing Court can refuse to execute it.

( 2 ) THE facts of the case are simple. The appellant, who is a cultivator, borrowed money and mortgaged some of his agricultural lands. The loan not being repaid there was a suit; in the trial Court all that the debtor wanted was accommodation for payment by instalments. which was refused and a decree was made expressly described as one with a mortgage on the lands mentioned there. When it was being put into execution the judgment-debtor made out that the decree was bad as a mortgage decree because he had mortgaged his agricultural lands in contravention of the provisions of Section 72 of the Madhya Bharat Land Revenue and Tenancy Act; the mortgage having left over for him only 6 and not 15 acres of land in the manner provided in that section. The mortgage itself was dated 10-31959 when the Madhya Pradesh Land Revenue Code had not yet come into force. The executing Court tried to examine this and felt that there was some controversy as to whether the excess area undoubtedly in the possession of the appellant which was much more than 15 acres, was really his own property or that of a brother-in-law which he was cultivating by an arrangement. Anyway, it. felt that the case was governed by Section 165 of the Madhya Pradesh Land Revenue code -- the provision corresponding to Section 72 of the Madhya Bharat Law -which, however, is not quite identical in wording or effect. Accordingly it rejected the judgment-deb-tor's objection whereupon he went up in appeal which also being dismissed he has come up to this Court.

( 3 ) THE basic weakness of the judgment-debtor's contention is obvious. An executing Court cannot go behind the decree except in a very special circumstance, namely, that the decree is patently illegal; that is. illegal just on the face of it. without any inquiry having to be made. If the illegality of the decree has to be established after some investigation and the weighing of pros and cons the executing Court cannot make such an inquiry. Most often this patent illegality would be one relating to jurisdiction. In fact some of the Courts have gone to the extent of holding that the only illegality that would justify an executing Court refusing to execute a decree is one both of a patent nature and relating to jurisdiction; in other words, where it is found that the Court passing the decree was patently incompetent and without jurisdiction. Even if we extend the principle to other forms of illegality we have to find that it is patent; in other words, an illegality on the face of the decree to be established on merely seeking it and without any investigation having to be made. ( 4 ) IN a case like this it is only after some investigation that we can decide whether or not the judgment-debtor was possessed of the surplus area prescribed in section 72. There again the problem was particularly difficult because he did have sufficient excess area in his cultivation but explained it by saying it was another darty's, which he was cultivating on an arrangement, while the decree-holder was asserting that the whole land was his. The question is not which of the two contentions is correct; it is, whether in a situation like this the decree can be described as being "patently illegal" whether for jurisdiction or on other grounds. Certainly it cannot be and it is not proper for the executing Court in a situation like this to try to go behind the decree and investigate whether or not it is illegal. By doing so it would be arrogating to itself the powers of an

Click Here to Read the rest of this document