Judgment M.Y.Eqbal, J. 1. This revision application is directed against the order dated 27.2.98 passed by Sub-Judge-2, Patna City in Misc. Case No. 2/98 arising out of Execution Case No. 5/90 by which he admitted the aforementioned misc. case filed by the judgment debtor opposite parties and stayed the execution of the decree in execution case 5/90 till the disposal of the misc. case. The operative portion of the impugned order passed by the Court below reads as under: Perused the petition for miscellaneous case. In this petition some legal and factual grounds have been mentioned that can be considered only if miscellaneous case is admitted and both parties are given opportunity to place their case. Sec. 47 of the Code of Civil Procedure is also clear that all questions arising between the parties to the suit in which the decree was passed and relating to the execution shall be determined by the. Court executing the decree and not by a separate suit. Here, the applicant has raised questions of law and facts which requires determination. Therefore, considering the entire matters this miscellaneous case is admitted and Execution Case No. 5/90 is tayed till disposal of this miscellaneous case. 2. Mr. Ram Balak Mahto, learned Counsel appearing for the petitioners assailed the impugned order as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the Court below has illegally and erroneously admitted the misc. case filed by the judgment debtor under Sec. 47 of the C.P.C. without applying his judicial mind. Learned Counsel then submitted that the objections raised by the judgment debtor in the misc. case are not new one rather all those objections were taken by way of defence in the written statement in the suit-filed by the petitioner seeking a decree for eviction, The suit was decreed. The judgment debtor then filed first appeal No. 62/90 in this Court and the said appeal was also dismissed. The petitioners then filed Letters Patent Appeal which too was dismissed. The judgment debtor thereafter filed objections under Sec. 47 of the Code of Civil Procedure challenging the execution of the decree on the same grounds which have been rejected by this Court up to L.P.A. Learned Counsel submitted that all these facts have not been considered by the Court below while admitting the misc. case and staying the execution of the decree. 3. Mr. case and staying the execution of the decree. 3. Mr. Tarkeshwar Dayal, learned Counsel appearing for the opposite party, on the other hand, refuted the argument advanced by Mr. Ram Balak Mahto and submitted that the validity of the decree can be challenged at any stage of the execution proceeding by filing objection under Sec. 47 C.P.C. and the Court is bound to dispose of/the objection after hearing the parties. Learned Counsel then submitted that when the decree for eviction was not passed against the Company who is the tenant then the said decree cannot be executed against it. 4. Before appreciating the rival contentions made by the learned Counsels appearing for the parties, it would be useful to look into the facts of the case. I have the occasion to go through the pleading of the parties, copies of which have been supplied to me by the learned Counsels. From perusal of the plaint it appears that the petitioners filed Eviction Suit No. 95 of 1986 against Smt. Snehlata Singh as defendant No. 1 and Kunwar Ayurvedic Pharmacy through Smt. Snehlata Singh as defendant No. 2. In the plaint the plaintiffs case was that the defendant No. 1 is month to month tenant in the suit premises on a monthly rental of Rs. 325.00 . Defendant No. 1 was giving rent in the name of defendant No. 2 and accordingly whenever the rent was paid, rent receipt was granted in the name of defendant No. 2. A joint written statement was filed by the defendants 1 and 2. In paragraph 4 of the written statement the following facts have been pleaded: That the suit is bad for mis-joinder of parties. It is submitted that Kunwar Ayurvedic Pharmacy Pvt. Ltd. through Smt. Snehlata Singh is really the tenant. Smt. Snehlata Singh has been unnecessarily impleaded in her personal capacity as defendant No. 1. She is not the tenant. She is only the Director of Kunwar Ayurvedic Pharmacy Pvt. Ltd. In paragraph 8 of the written statement the defendants pleaded that defendant No. 2 paid rent through defendant No. 1 hand-to-hand to the trustee or trustees till the month of November, 1986 but the plaintiffs did not grant any receipt on one pretext of the other. She is only the Director of Kunwar Ayurvedic Pharmacy Pvt. Ltd. In paragraph 8 of the written statement the defendants pleaded that defendant No. 2 paid rent through defendant No. 1 hand-to-hand to the trustee or trustees till the month of November, 1986 but the plaintiffs did not grant any receipt on one pretext of the other. It is further pleaded in the written statement that the defendants have been remitting the rent regularly but the plaintiffs have been refusing the same with ulterior motive. 5. The suit was decree in terms of judgment dated 30th November, 1989. The trial Court while deciding the issue No. 5 has considered the evidence of the parties and found that admittedly defendant No. 1 paid rent of the suit building to the plaintiff and rent receipt was issued till December, 1984. The trial Court also came to a finding on the basis of admission made by defendant No. 1 Smt. Snehlata Singh that she used to pay rent and rent was collected by the plaintiff according to convenience. The suit was accordingly, decreed against both the defendants. The defendants then preferred first appeal in this Court being F.A. No. 62/90. In that appeal prayer was made by the judgment debtor for stay of the execution case and this Court passed the following order: Heard learned Counsel of both the sides on the petition at Flag A under Order XXXIX, Rule 1 and Sec. 151 of the C.P.C. counter affidavit at Flag B and reply to the counter affidavit Flag C. On depositing in the Execution Court by the petitioner appellant of the entire rent from the month of December, 1989 up to 31st of March, 1991 at the rate at which it was previously deposited and execution of a bond of Rs. 4,000.00 with one surety undertaking thereby to vacate the suit premises within one month if the appeal is dismissed and in default thereof to deliver that amount to the respondent-decreeholder, the further proceeding in Execution Case No. 5 of 1990 shall remain stayed. During the Court of submission, it has been submitted that the petitioner-appellant shall go on depositing current rent by the 15th day of every succeeding month also as and when it will fall due. If she does not deposit future rent, the respondent may move vacating the stay order recorded above. During the Court of submission, it has been submitted that the petitioner-appellant shall go on depositing current rent by the 15th day of every succeeding month also as and when it will fall due. If she does not deposit future rent, the respondent may move vacating the stay order recorded above. Since, it has been submitted that the matter of rent fixation is pending before the Collector in appeal, the respondent may, after final decision in the matter of the Collector, move for modification of the stay." 6. As stated above, the first appeal was finally heard and dismissed in terms of judgment dated 5th September, 1997. From perusal of the judgment it appears that in the appeal the judgment debtor appellant and assailed the finding of the trial Court on the point of default only. No other points were raised by the appellant in the first appeal. The judgment debtor then filed L.P.A. No. 1443/97. In that appeal also the appellants challenged the finding of the two Courts on the point of default and no other points were raised. The L.P.A. was dismissed in terms of judgment and order dated 13.2.98. The defendant No. 1 Smt. Snehlata Singh then filed objection under Sec. 47 of the C.P.C. which was registered by the Executing Court as Misc. Case No. 2/98. The decree holder took serious objection on the maintainability of the misc. case by filing rejoinder. A copy of the objection filed under Sec. 47 C.P.C. has been filed and annexed as Annexure-2 to this revision application. The judgment debtor raised various questions relating to execution of the decree. Firstly it is stated that although the finding recorded by the trial Court that the suit premises is a religious trust property but the trial Court failed to hold that the suit was not maintainable. Second objection was taken that the defendant No. 1 was not the tenant and the real tenant was M/s. Kunwar Ayurvedic Pharmacy, Pvt. Ltd. but the company was not made party. The decree, therefore, is not executable. Thirdly it was stated that the finding arrived at by the Courts and the decree passed on the ground of default is perverse in law. The next objection taken by the judgment debtor is that no decree of eviction would be sustainable on the ground of default for non-payment of rent in excess of contractual rent. 7. Thirdly it was stated that the finding arrived at by the Courts and the decree passed on the ground of default is perverse in law. The next objection taken by the judgment debtor is that no decree of eviction would be sustainable on the ground of default for non-payment of rent in excess of contractual rent. 7. The learned Court below after perusing the application filed under Sec. 47 of the C.P.C. came to the conclusion that the judgment debtor has raised question of law and fact which requires determination. The misc. case was, therefore, admitted and the execution of the decree was stayed by the impugned order. 8. From perusal of the impugned order it is evident that the Court below has totally misconstrued the provisions of Sec. 47 of the Code. The Court below further appears to have over-looked the power of the Executing Court vis-a-vis the application of the aforesaid provision. It is true that all questions relating to execution, discharge and satisfaction of decree shall be determined by the Executing Court and not by a separate suit but power of the Executing Court is limited. Unless the decree is a nullity and passed by a Court having not jurisdiction, the executing Court is bound to execute the decree. In the case of V.D. Modi V/s. R.A. Rehman -- , the Apex Court while considering the scope of Sec. 47 of the Code held as under: 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 ever on the ground of absence of jurisdiction. 9. In another case of Bhavanvaja V/s. Solanki Hanuji -- , the Apex Court while considering the power and duty of the Executing Court under Section 47 of the Code held that it is the duty of the Executing Court in appropriate cases to take into consideration the proceedings as well as the proceedings leading up to the decree in order to find out whether the objection raised by the judgment debtor is prima facie entertainable. The Apex Court again clarified the position and settled the law with regard to power and duty of the Executing Court in the case of Sunder Dass V/s. Ram Prakash AIR 1977 SC 1901. The Apex Court held: Now the law is well settled that 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 invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the Court to try the case and a decree which is a nullity is void and can be declared to be void by any Court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The Executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The Executing Court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the Executing Court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. 10. As noticed above, from the impugned order it does not appear as to what are the questions of fact and law raised by the judgment debtor which persuaded the Court to admit the misc. case and stay the execution of the decree which was affirmed up to the Letters Patent Court. From the facts narrated above it would appear that defendant No. 1 Smt. Snehlata Singh took the defence in the suit that defendant No. 2 Kunwar Ayurvedic Pharmacy, Pvt. Ltd. is a real tenant and she is merely a Director. However, in the evidence she has admitted that she was paying rent in the name of defendant No. 2 in whose name rent receipt was granted. The trial Court on the basis of the evidence adduced by the defendants and the admission made by defendant No. 1 came to a finding that the defendants are the tenants and accordingly decreed the suit against both the defendants. The defendants preferred first appeal in this Court but the same was dismissed and the finding of the trial Court was affirmed. The defendants also moved the Letters Patent Court but the Letters Patent Appeal was also dismissed on merit. As noticed above, the defendants at the time of pressing their application for stay of the execution proceeding in the first appeal they gave undertaking to vacate the premises within one month if the appeal is dismissed. All these facts had not at all been taken into consideration by the Executing Court while passing the impugned order. As noticed above, the defendants at the time of pressing their application for stay of the execution proceeding in the first appeal they gave undertaking to vacate the premises within one month if the appeal is dismissed. All these facts had not at all been taken into consideration by the Executing Court while passing the impugned order. As stated above the Executing Court has power to determine any question raised by the parties with regard to execution, discharge and satisfaction of decree but before admitting the application for hearing it is the duty of the Court to prima facie satisfy himself that the questions raised in the objection filed under Sec. 47 of the Code has substance and prima facie this question requires consideration by the Court. Sec. 47 of the Code does not confer power to the Executing Court to stay execution of the decree affirmed up to second appeal merely by admitting the misc. case on the ground that question of law and facts are involved. Atleast it is the duty of the Court to go through the pleading of the parties or to the judgment and decree before staying the execution case and it should record reasons as to how the decree prima facie appears to be a nullity. The Executing Court is not summoned to admit the objection under Sec. 47 of the Code in a routine manner and stay the execution proceeding till the disposal of the misc. case registered on such objection. In the instant case, as noticed above, the Executing Court has passed the impugned order mechanically without application of mind. In my opinion the objections raised by the judgment debtor in the application under Sec. 47 of the Code cannot and shall not be a ground for holding that the decree is a nullity. 11. Having regard to the facts and circumstances of the case and the discussions made above, I am of the opinion that the impugned order passed by the Court below cannot be sustained. In the result, this application is allowed and the impugned order passed by the Court below is set aside. Accordingly, the objection filed by the judgment debtor under Sec. 47 of the Code is rejected.