ORDER

1. This petition under Article 227 of the Constitution of India has been preferred by the petitioner/defendant/judgment debtor being aggrieved by the order dated 13.3.2024 passed by the Second Civil Judge, Junior Division, Barwah, District West Nimar, Mandleshwar (M.P.), whereby the objection preferred by her to the executability of the decree has been rejected.

2. The facts of the case in brief are that the respondent/ plaintiff /decree holder instituted an action for specific performance of contract. The suit was valued at Rs.9,00,000/- and was instituted in the Court of Civil Judge, Senior Division, Barwah. Subsequently, the same was transferred by the District Judge to the Court of Civil Judge, Junior Division, Barwah. Eventually, the same was decreed ex-parte by judgment and decree dated 4.1.2019.

3. The decree was then put to execution by the decree holder before the executing Court. Upon being served with notice of the execution proceedings, the judgment debtor filed an objection therein, presumably under section 47 of the CPC, to the executability of the decree submitting that the claim was valued at Rs.9,00,000/- but has been decreed by Court of Civil Judge, Junior Division which has pecuniary jurisdiction only up to Rs.5,00,000/- hence the decree passed is without jurisdiction, null and void and inexecutable. The application was contested by the decree holder and has been rejected by the executing Court by observing that no appeal has been preferred against the decree and there is no order of stay of its execution and that the grounds as taken by the judgment debtor are not sufficient for dismissal of the execution proceedings.

4. Learned counsel for judgment debtor has submitted that the decree has been passed by Court of Civil Judge, Junior Division which has pecuniary jurisdiction only up to Rs.5,00,000/-. The claim of decree holder was valued at Rs.9,00,000/-. The decree is hence beyond competence of Civil Judge, Junior Division, who inherently lacked jurisdiction to pass the same which is hence a nullity and such an objection could have very well been raised before the executing Court. Since the decree is a nullity, the same cannot be executed in view of which the execution proceedings deserve to be dismissed. Reliance has been placed by him on the decision of the apex Court in Harpal Singh v. Ashok Kumar and Another 2018 (11) SCC 113.

5. Per contra, learned counsel for the decree holder has submitted that even if the decree has been passed by a Court not having the pecuniary jurisdiction, it would not be a case of inherent lack of jurisdiction. The decree passed would at best be voidable but not void or a nullity. The objection as regards the same being voidable cannot be raised in execution proceedings. Since the decree is not a nullity, the application preferred by the judgment debtor has rightly been dismissed by the executing Court. Reliance has been placed by him on the decision of the apex Court in Hasham Abbas Sayyad v. Usman Abbas Sayyad and Others, 2007 (2) SCC 355 and Subhash Mahadevasa Habib v. Nemasa Ambasa Dharmadas (Dead) by Lrs. and Others 2007 (13) SCC 650.

6. I have considered the submissions of learned counsel for the parties and have perused the record.

7. The claim was instituted by the decree holder before Civil Judge, Senior Division and was valued at Rs.9,00,000/-. Thereafter the same was transferred by the District Judge from the Court of Civil Judge, Senior Division to the Court of Civil Judge, Junior Division, who admittedly has pecuniary jurisdiction only up to Rs.5,00,000/-. Ex-parte judgment and decree was passed by him on 4.1.2019. The issu