The executing court lacks jurisdiction over a compromise decree that is a nullity, allowing restoration of possession to the appellant.

1. This appeal is preferred by the judgment - debtor appellant against a judgment and order of affirmance rejecting his application under S.47 and S.151 of the Civil Procedure Code in an execution case started by the decree - holder for taking delivery of possession of the disputed property.

2. In a suit filed, inter alia, on the ground of building and re - building by the respondent Union Carbide India Ltd., for rejecting the judgment - debtor a compromise petition was effected under which the judgment - debtor agreed to deliver vacant possession of the disputed premises in parts to the decree - holder from time to time on different dates. Although possession of the separate portions of the disputed premises was delivered according to the terms of the compromise the appellant failed ultimately to deliver possession of the portion of the disputed premises with which we are now concerned and the respondent put the decree into execution. The Court in course of such execution proceeding issued a writ for delivery of possession and thereafter on or about 1st February, 1969, the appellant made an application under S.47 read with S.151 of the Code of Civil Procedure praying inter alia, for recalling the writ for delivery of possession substantially on the allegation that the respondent with the help of large number of persons described as anti - social elements and the Court's Bailiff was trying to take forcible possession. The appellant also made a separate application for temporary injunction which gave rise to another miscellaneous case which, however, was rejected but with which we are not concerned now.

3. This application, however, was opposed by the decree - holder - his case being, in short, that the application was not maintainable and in any case possession of the disputed premises was already taken.

4. The learned trial Court dismissed the application on the view that the possession was already taken and therefore, the application was not maintainable. On appeal the appellate Court concurred with the view taken by the trial Court and dismissed the appeal on consideration of an additional point, namely, that even if compromise decree was passed without proof of any grounds taken in the ejectment suit, it was still valid and binding as such decree for its ejectment was passed on admission of the appellant.

5. In the appeal before us the question as to whether delivery of possession of the disputed premises was complete by executing the writ is concluded by concurrent finding of fact. We are therefore unable to go into this question over again in the second appeal.

6. This leaves us to the only other point for consideration as to whether the compromise decree entered into between the parties was without jurisdiction and a nullity and if so whether the Executing Court has power to restore possession to the appellant. It is undisputed that the ejectment suit was filed on several grounds including the ground of reasonable requirement for building and rebuilding. This point though taken for the first time before the Appellate Court below was considered unnecessary for its decision on the application; nevertheless the Court entered into the question and reached the conclusion relying on a Bench decision of this Court in (1964) 68 Cal WN 353, Dr. T. S. Gupta v. Kanahialal Ruia , that this compromise decree was necessarily based upon "the admission or acceptance of the plaintiff's allegations or averment as to its