KAMALAMMA v. MAHADEVAPPA — 1982 DIGILAW 16 (KAR)

N. D. VENKATESH, J. ( 1 ) THIS execution second appeal is directed against the judgment and decree dated 25-9 1978 of the First Addl. District judge, Bangalore City, in Exn. Appeal no. 11 of 1975 on his file. That appeal had been preferred by Mahadevappa, respondent herein, against the order dated 12-11-1975 of the I Addl. Civil Judge, bangalore City in Exn. Case No. 124 of 1972 on his file. The District Judge allowed the appeal and set aside the order of the Civil Judge. In the execution case on the file of the Civil Judge the appellant herein Kamalamma was the decree-holder and Mahadevappa was the judgment-debtor. ( 2 ) A few facts leading to this litigation may be noted :- kamalamma, Mahadevappa and one lakshmamma were partners of a firm known as Benaka Engineering Works. Mahadevappa was the managing partner. Differences arose between the partners. Kamalamma filed a suit in OS No. 174 of 1967 on the file of the I Addl. Civil Judge, bangalore City for dissolution of the partnership firm and consequential reliefs. Her case was that her contribution to the capital of the partnership concern was Rs. 10,000 ; that Mahadevappa was not properly managing the affairs of the concern ; that accounts of the firm should be taken after dissolving it; and that she should be directed to be paid not merely Rs. 10,000 the investment she had made, plus interest, but also her share in the profits. The reliefs claimed by her in the suit were in these terms : wherefore the plaintiff prays for judgment and decree :-1) Dissolving the partnership firm 'benaka Engineering Works';2) Appointing a receiver to take immediate charge of the firm ;3) To go into accounts of the firm ;4) Directing the 1st defendant to pay to the plaintiff a sum of Rs. 12,000 only both personally and from the assets of the firm with further interest at the rate of 12% per annum from the date of suit to the date of payment together with costs of the suit;5) With such other relief/s as this hon'ble Court deems fit to grant in the circumstances of the case". ( 3 ) IN the written statement filed by the defendants jointly the averments made in the plaint that the managing partner was misusing the funds of the firm etc. , were denied. ( 3 ) IN the written statement filed by the defendants jointly the averments made in the plaint that the managing partner was misusing the funds of the firm etc. , were denied. It was further stated that the transactions of the firm were borne out in ths account books ; that the capital invested by the partners had been converted into material assets, and that the firm was about to start earning profits ; and that the allegations contrary to all these in the plaint were all false and her suit should be dismissed. ( 4 ) ON these pleadings the following three issues were framed by the trial court : (I) Is the plaintiff entitled for a decree for dissolution ? (II) If so, to what consequential reliefs is plaintiff entitled ? and (III) To what reliefs the parties are entitled to ? (See the order-sheet in OS No. 174/67 dt. 24-7-1968 ). Having been set down for evidence the suit came to be adjourned from time to time, and, on 11-10-1968, by consent, a preliminary decree on the following lines came to be passed. "11-10 1968 : Plaintiff by Sri V. K. G. Defendant by Sri S. N. Evidence. Plaintiff and her counsel are absent. But all the same the defendants have no objec to pass a preliminary decree for dissolution of partnership firm with effect from 1-8-1967. The consequences of passing a preliminary decree is to take accounts of the partnership firm. There will be, therefore, a preliminary decree dissolving the partnership firm with effect from 1-8-1967. The plaintiff will apply by a separate application to appoint a Commission to take accounts of the partnership firm. The firm continues with defendants as partners. Id/ 11 10". In the light of the preliminary decree the plaintiff filed an application for appointment of a commissioner to go into accounts. There were several adjournments and ultimately the person who had been appointed as the commissioner filed a memo into Court on 23 -7-1971 requesting the office to hand over the account books to him in order to audit the same. There was direction by the Court to the office to search for the books said to have been produced into Court by Mahadevappa (the 1st defendant ). During this period the case used to be adjourned awaiting the commission warrant issued to the commissioner. There was direction by the Court to the office to search for the books said to have been produced into Court by Mahadevappa (the 1st defendant ). During this period the case used to be adjourned awaiting the commission warrant issued to the commissioner. On 30-10-1971 plaintiff's counsel made a representation stating that the counsel for the defendant may be asked to point out the account books. Since the defendants' Counsel was not present, Court notice was issued to him and the matter was adjourned to 15-12-1971, 11-1-1972, and to 21-1-1972 awaiting the return of the notice issued to him (defendants' counsel ). The matter ultimately came to be posted to 15-4-1972 to find out the account books ; on that day neither the defendants' C. ounsel nor the defendants were present. Counsel for the plaintiff was present. A final decree was ordered to be drawn up by the Court for the reasons stated by the Court in the order-sheet of that date. The same reads as follows :"15-4-1972 : Account books not traced. The counsel for plaintiff does not press his memo regarding the appointment of commissioner for accounts in view of the fact that the account books are not traceable. He reports that it is beneficial if the final decree is passed in terms of the prayer in the plaint, Hence, draw up final decree as prayed for. Sd/- 15 4 1972". ( 5 ) FINAL decree was drawn accordingly and it was signed on 22-5 1972 (The note it the end in the order-sheet of that date 15 -4 1972 may be seen ). The decree-holder took out execution in Exn. No. 124 of 1972 and referred to above on the file of the I Addl. Civil Judge at Bangalore City to execute this final decree and she obtained an attachment of certain properties of mahadevappa. Mahadevappa in the meanwhile preferred an appeal, challenging the final decree, in RA No. 105 of 1972 in the court of the II Addl. District Judge at bangalore. Since there was delay he also filed an application, IA I for condonation of delay in preferring the appeal. That interlocutory application, was allowed by the district Judge. Kamalamma challenged this order in CRP No. 678 of 1975 in this court. District Judge at bangalore. Since there was delay he also filed an application, IA I for condonation of delay in preferring the appeal. That interlocutory application, was allowed by the district Judge. Kamalamma challenged this order in CRP No. 678 of 1975 in this court. The revision was allowed and the matter was remanded, after setting aside the order, to dispose of IA I according to law and in the light of the observations made therein. Again delay came to be condoned by the District Judge by his order dated 7-11-1963. Kamalamma challenged this order in GRP No. 1068 of 1974. This court by its order dated 12-12-1974 allowed the revision by setting aside the order of the District Judge, mainly on the ground that the appeal preferred by Mahadevappa war barred by time. There was an unsuccessful attempt to get that order in the CRP, reviewed. Later Mahadevappa filed a suit in OS No. 240 of 1975 on the file of the Civil Judge, Bangalore City, to get that final decree set aside. The suit came to be dismissed for non-prosecution. A miscellaneous application, Misc. No. 130 of 1975, to get that order set aside also was dismissed. After all these attempts having failed to get that final decree set aside, the judgment-debtor, Mahadevappa, raised objections in the Executing court stating that the final decree, having been made contrary to the provisions of the Code of Civil Procedure and playing fraud on the Court, was null and void and was inexecutable. On the I Addl. Civil judge overruling these, objections by his order dated 12-11-1975 (referred to above), mahadevappa came up in appeal before the District Judge in Exn. FA No. 11 of 1975 on his file. The point formulated by the District Judge for his decision was as to whether the final decree of the trial court was a nullity having been passed without jurisdiction and, therefore, inexecutable ? Answering it in the affirmative, he allowed the appeal. ( 6 ) IT may be noted that after hearing both the sides this Court, by its judgment dated 14-10-1981, had allowed this second appeal. However, the learned counsel for the respondent, Mahadevappa, filed a civil Petition - CP No. 328 of 1981 requesting this Court to review the judgment for the reasons that he could not address his arguments in full and on all aspects of the case. However, the learned counsel for the respondent, Mahadevappa, filed a civil Petition - CP No. 328 of 1981 requesting this Court to review the judgment for the reasons that he could not address his arguments in full and on all aspects of the case. After hearing the parties that cp was allowed recalling the judgment of this Court dated 14-10 1981. Both sides were heard in the matter again. ( 7 ) IN a somewhat greater detail the facts leading to the drawing up of the final decree by the trial Court have been narrated above so th'at it would help in appreciating the rival contentions of the learned Counsel in this appeal. ( 8 ) THE learned counsel for the appelant contended that the Court which had passed the final decree did not lack inherent jurisdiction to deal with the matter and as such the final decree passed by it, assuming that there were some procedural irregularities in the drawing up of that final decree, cannot be construed as a nullity and under no circumstances was it open to the executing Court to go behind the decree. According to him the first appellate Court had wholly misconstrued the legal position and had erred in setting aside the order of the executing Court over-ruling the objections raised by the judgment- debtor. ( 9 ) ON the other hand, while supporting the judgment of the first appellate Court, the learned Counsel for the respondent submitted that the final decree was a nullity for two reasons. Firstly because the court which had passed the final decree can be said to have had no jurisdiction, by the way it proceeded with the matter, to pass that final decree, and therefore it was a nullity. Secondly, that decree, having been made in violation of all the statutory rules, was a nullity and, therefore, the first appellate Court was justified in refusing to execute the same. ( 10 ) TO take up the second contention raided by him first. He argues that preceding, the passing of the final decree there was no judgment ; that though issues had been raised no findings were given on any of them ; that disputes raised had not been finally determined; and that the final decree, as made, was not in consonance with the preliminary decree. According to him the aforesaid omissions have made the final decree a nullity. According to him the aforesaid omissions have made the final decree a nullity. He also argues that the Courts below had violated Or. XX, Rr. 5 and 15, and Or. XXXV, R. 5 of CPC, and other relevant rules while drawing up this final decree and, therefore, also that decree was a nullity. In support of these contentions he places reliance on a number of authorities which do say that several of these irregularities in the matter of drawing up of a final decree may make that decree unsustainable. I have gone through those decisions. But, there is one important difference between the set of facts involved in those cases on the one hand and the instant case on the other. In the instant case the preliminary decree made was by consent of parties and the final. decree is in the nature of an ex-parte decree. Neither Mahadevappa nor his Counsel had been heard in the matter. In the circumstances it is evident that there could hot be a judgment and the court had no occasion to give its findings on the various issues earlier raised in the case. For this reason alone the final decree cannot be attacked as null and void. It is true that the Court had passed an order directing the drawing up of that decree on a day on which the case had not been set down for hearing of that matter. It may be that the final decree drawn has not been drawn in the prescribed form. Relying on a decision of the Rajasthan high Court in Savitridevi v. Laxmi narain (1), Counsel for the respondent submitted that forms had statutory force and the decree not having been drawn in the prescribed form was a nullity. Also, according to him, the decree not being in accordance with the preliminary decree was unenforceable. Assuming that, in the instant case, the decree had not been drawn in the prescribed form, the same cannot be characterised as a nullity. Also there is no force in the other argument that the final decree not being in consonance with the preliminary decree is a nullity. By the preliminary decree the partnership came to be dissolved with effect from 1-8-1967. A further direction was given to take accounts of the firm. Also there is no force in the other argument that the final decree not being in consonance with the preliminary decree is a nullity. By the preliminary decree the partnership came to be dissolved with effect from 1-8-1967. A further direction was given to take accounts of the firm. The reliefs claimed in the plaint, as extracted above, involved the dissolution of the firm, taking of accounts, and for a decree in a sum of rs. 12,000. This amount, according to the plaintiff, was made up of her initial investment of Rs. 10,000 plus interest, in all amounting to Rs. 12,000 (para 12 of the plaint ). The Court, having come to the conclusion that it was not possible to verify the accounts, proceeded to grant the decree in terms of money as sought for. Even though in the passing of this final decree that Court had erred in not hearing the defendants or their Counsel, it cannot be said that the decree is a nullity for the reasons urged, at; above, by the Counsel for the respondent. In all those cases cited by the Counsel for the respondent in support of these contentions what were under challenge were the very judgments and decrees and in none of those authorities the powsrs of the executing Court to go behind those decrees have been conceded. No doubt in one of the decisions relied upon by the learned Counsel ATNAT. Chokkalingam Chettiar v. Ko Maungi gyi (2), it is observed that,"where there is no judgment to support the decree sought to be executed and the decree is something merely written in a decree form, the decree is a complete nullity and the executing court can disregard it". But for the reasons already mentioned, the facts of this case also are distinguishable and the ratio cannot be applied to the facts of the instant case. But for the reasons already mentioned, the facts of this case also are distinguishable and the ratio cannot be applied to the facts of the instant case. In fact in Rana harkishandas Lallubhai v. Rana Gulabdas kalyandas (3), a Division Bench decision of the Bombay High Court, Gajendragadkar, J. , (as he then was) observes as follows :-"in determining the jurisdiction of the executing Court to entertain pleas under S. 38 it was always necessary to make a distinction between pleas that tend to show that the decree in question is a nullity and pleas that merely challenge the validity or the propriety of the decree on the ground that it is contrary to the provisions of law. If the plea is that the decree is a nullity and so cannot be executed, it would be open to the executing Court to entertain the plea. On the other hand, if the plea is that the decree is contrary to law in the sense that in passing the said decree certain provisions of the law have been ignored or contravened, that would not necessarily make a decree a nullity and allegations about the impropriety or the illegality of the decree cannot be entertained in execution proceedings". (Head note-c ). The ratio of the above ruling is an apt reply to the. argument of the learned counsel for the respondent. ( 11 ) WHILE stretching this argument further he submitted that because of these lapses the Court can be said to have had no jurisdiction at the time when it proceeded to order the drawing up of the final decree for the reason that existence of jurisdiction is one thing and the exercise of that jurisdiction is another, and, that, if the jurisdiction vested had not been properly exercised or had not been exercised in accordance with the guidelines available in law or the relevant rules, the court should be deemed to have had no jurisdiction or lacked jurisdiction to make that decree. The following observations of the learned Author B. N. Banerjee in his 'law of Execution' (1968 Edn.) at page 40 would be an effective answer to the above contention :"jurisdiction may be defined as power of the Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. 'exercise of jurisdiction' should be distinguished from 'existence of jurisdiction". 'exercise of jurisdiction' should be distinguished from 'existence of jurisdiction". The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction, and when there is jurisdiction of the person and subject matter, the decision of all other questions arising in a case is but an 'exercise of jurisdiction'. The distinction between cases where jurisdiction is assumed by a Court where there is absolute want of it, and those where the Court in exercise of its jurisdiction acts wrongiy, is of fundamental importance. In the former case the decision is void and a nullity, whereas in the latter case, it is merely voidable and has due effect, unless set aside by appropriate proceedings. It cannot be said that whenever a decision is wrong in law or violates a rule of procedure, the Court must be held incompetent to deliver it. If a decree is passed by a Court, which had no inherent jurisdiction, it is incapable of execution and the executing court can certainly go behind the decree and refuse to execute it". ( 12 ) THE learned District Judge upheld the objections of the judgment-debtor to the execution of the decree mainly on two grounds. Firstly, on the ground that the final decree had been passed in terms of the plaint without any kind of adjudication as to the rights of the parties, and that, in the circumstances of the case, the trial Court was not competent to do so and that it could also be said that when it directed the drawing up of the final decree it lacked inherent jurisdiction in respect of the subject-matter of the suit; and, secondly on the ground that the final decree was a nullity, the same having not been drawn in accordance with the preliminary decree. ( 13 ) THE second aspect of the matter has already been considered above. The preliminary decree had dissolved the partnership thereby conceding (by consent of parties) the main relief sought for by fhe plaintiff. I have already referred to the averments made in the plaint. The plaintiff had asked for accounts and had also sought for a decree in a sum of Rs. 12,000. Whether she was entitled to a decree in a sum of Rs. 12,000 had to be considered in the light of the examination of the accounts. I have already referred to the averments made in the plaint. The plaintiff had asked for accounts and had also sought for a decree in a sum of Rs. 12,000. Whether she was entitled to a decree in a sum of Rs. 12,000 had to be considered in the light of the examination of the accounts. Attempts were made after the passing of the preliminary decree, to go into the accounts through a commissioner, and somehow, at a certain stage later, that was not pursued and, as already stated above, the Court abandoned the attempt of securing the account books and that, at the instance of the plaintiff and in the absence of the defendants and that too on the date on which the matter had not been set down for hearing re : the final decree to be made, the Court passed an order directing the drawing up of the final decree awarding a sum of Rs. 12,000 to the plaintiff. Indeed the Court committed a mistake in making this order on a date on which the case had not been set down for hearing re : this claim (claim concerning the final decree ). Though it may be stated that the Court below had erred in proceeding in that fashion in the drawing up of the final decree, it cannot in the circumstances, be said that that decree drawn, being contrary to the terms of the preliminary decree, is wholly void or illegal. The court below says that, since there had been no judgment or adjudication of the rival claims, preceding the drawing up of the final decree, the decree is a nullity It is stated above that the final decree partakes the character of an ex-parte decree. But, can it be said that, when the Court below directed the drawing up of the final decree, it lacked inherent jurisdiction to deal with the matter ? The Court below appears to think that at least as to the subject-matter of the final decree that Court lacked jurisdiction to deal with the same. This view is wholly incorrect. It is conceded that the trial Court had territorial and pecuniary jurisdictions to deal with this claim. Subjectwise also it did have jurisdiction. The Court below appears to think that at least as to the subject-matter of the final decree that Court lacked jurisdiction to deal with the same. This view is wholly incorrect. It is conceded that the trial Court had territorial and pecuniary jurisdictions to deal with this claim. Subjectwise also it did have jurisdiction. But what the District Judge says is that the only relief that had been granted in the preliminary decree was the dissolution of the partnership and taking up of accounts and that when the plaintiff did not pursue her claim for accounts she should be deemed to have given up the claim for Rs. 12,000 and, therefore, the court below could not have granted that relief and from this view, according to the learned District Judge, the trial Court should be held to have no jurisdiction to deal with the subject-matter relating to the claim for Rs. 12,000. The plaint reliefs are extracted above. The plaintiff had not asked for a decree in a sum of Rs. 12,000 as her estimate of the profits accruing from the firm's business. The basis for this money claim consisted of Rs. 10,000 contributed by the plaintiff towards the firm's capital plus interest. How can it be said, in the circumstances, that because the plaintiff had not pursued the taking up of accounts she had abandoned her claim for this sum of Rs. 12,000 claimed in the plaint. The process of reasoning adopted by the District Judge does not appeal to reason. ( 14 ) UNDER what circumstances can the executing Court go behind a decree has been dealt with by the Supreme Court in several of its decisions. The District Judge, no doubt, makes reference to three of them, viz. ,hiralal Patni v. Sri Kalinath (4), vasudev Dhanjibhai Modi v. Rajabhai Abdul rehman (5) and Bhavan Vaja v. Solanki hanuji (6 ). Though he refers to these decisions he has not properly construed the ratio enunciated by the Supreme Court in these respective cases. He purports to lay considerable emphasis on the observations in Bhavan Vaja's (6) case, which, I may say, are not directly on the point. In that case, it appears, the decree was rather vague and not clear as to certain properties said to have been mentioned therein (in the decree ). He purports to lay considerable emphasis on the observations in Bhavan Vaja's (6) case, which, I may say, are not directly on the point. In that case, it appears, the decree was rather vague and not clear as to certain properties said to have been mentioned therein (in the decree ). It fell to the task of the Court executing the decree to construe the decree and to make out from it what the true import of the same was ? The questions that had arisen in that case were : (i) whether the decree sought to be executed included certain properties and (ii) whether, in view of certain proceedings under the Saurashtra land Reforms Act, 1951, it was not open to the decree-holder to ask for possession of some of the lands. According to the supreme Court, in such a situation, the executing Court, though it could not go behind the decree under execution, was duty bound to find out the true import or the effect of the decree and to construe such a decree. "it ought to take into consideration the pleadings as well as the proceedings leading upto the decree". In this connection the following observations of the Supreme Court at para 19 may be noted :-"it is true that an executing Court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading upto the decree. In order to find out the meaning of the words employed in a decree the Court often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the executing Court and if that Court fails to discharge that duty, it has plainly failed to exercise the jurisdiction vested in it. Evidently the executing court in this case thought that its jurisdiction began and ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the executing Court does not appear to have considered those documents. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate Court had been placed before it, the executing Court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree". As already stated the facts of this case are different from the facts of the case on hand, The two other decisions referred to above have a direct bearing. But the district Judge does not appear to have noticed the binding nature of the ratio enunciated in those two cases. It may also be relevant to note that the Benches of the court that decided Bhavan Vaja's (6) case and Vasudev Dhanjibhai Modi's (5) case consisted of three learned Judges each, whereas Hiralal Patni's (4) case was dealt with by a Bench consisting of four learned judges. In Hiralal Patni's (4) case, while examining as to what is meant by the court "lacking in inherent jurisdiction" and "under what circumstances the executing Court can go behind the decree it is executing", the following observations are made :"cpc (1908), Ss. 21, 38, 47-Objection regarding territorial jurisdiction- does not go to root of jurisdiction- validity of decree cannot be challenged on that ground in execution proceedings -Judgment- Debtor held estopped from taking that objection in execution. It is well settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction and where it is lacking, it is a case of inherent hick of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given statutory recognition by enactments like s. 21 of the CPC. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given statutory recognition by enactments like s. 21 of the CPC. The validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it". (Head Note ). The Court below appears to think that the words "or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it" used in para 4 (extracted above) encompasses, or takes within it a case like the one with which we are concerned. The District Judge is not correct in that view. I may also say that he has misconstrued these observations. The trial Court did not lose its inherent jurisdiction in respect of the subject-matter of the dispute or over the parties to the suit at any point of time and throughout the proceeding in question. It might have committed irregularities in the matter of directing the drawing up of the final decree. That is entirely a different question. Besides this, what is further observed in Vasudev Dhanjibhai modi's (5) case is that even in cases where it is alleged that the Court which has passed the decree lacked inherent jurisdicion to make such a decree, such an objection, to be entertainable by the executing court, should appear on the face of the record and if not the executing Court should not go into such an objection at all. The following observations of the court at para 7 of the judgment may be noted :"when a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree or against a ruling prince without a certificate, is sought to be executed, an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record ; where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra mohan Bhaduri v. Rabindranath Chakravarti, 60 Ind, App. 71 (AIR 1933 PC 61) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction". ( 15 ) IN similar terms are the observations of the Supreme Court in Sunder Dass v. Ram Prakash (7 ). Therein the Court observes :"an executing Court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the Court passing it, its validity can be set up in an execution proceeding". ( 16 ) IT is unfortunate that Mahadevappa, who had some valid objections to the final decree, could not succeed in the various proceedings he had taken against that decree. ( 16 ) IT is unfortunate that Mahadevappa, who had some valid objections to the final decree, could not succeed in the various proceedings he had taken against that decree. However, in the circumstances, he is not entitled to raise any objection on the execution side, since, in the circumstances of this case, it is beyond the competence of the executing Court to go behind the decree in question. The executing court-Civil Judge-has rightly over-ruled the objections. The judgment of the first appellate Court upholding the objections is wrong and unsustainable for the reasons stated by me above. ( 17 ) THEREFORE, this appeal is allowed. The judgment and decree dated 25-9-1978 of the first appellate Court in Exn. App. No. 11 of 1975 on his file is hereby set aside. The order dated 12 11 1975 of the i Addl. Civil Judge, Bangalore, in Exn. Case No. 124 of 1972 is confirmed. Parties are directed to bear their own costs throughout. --- *** --- .