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2014 DIGILAW 753 (RAJ)

Akhtar Un Nisa v. Rehan Ahmed

2014-03-21

BELA M.TRIVEDI

body2014
Judgment 1. The present revision petition has been filed by the petitioner-objector under Section 115 of CPC, challenging the order dated 03.05.2007 passed by the Additional District Judge No.1, Jaipur City, Jaipur (hereinafter referred to as “the executing court”) in execution case No.12/86, whereby the executing court has dismissed the application of the petitioner-objector filed under Section 47 of CPC. 2. The factual matrix giving rise to the present revision petition are that the Jagirdar Badiuddin Khan had three sons named Gulam Mohiuddin Khan, Saeeduddin Khan and Hamiduddin Khan. The said Badiuddin died in the year 1950. His son Ghulam Mohiuddin died issueless on 9/11/1989. Hamiduddin died in 1991 leaving behind four sons and two daughters. The third son Saeeduddin died on 16/11/2000, leaving behind his wife Akhtar, one daughter named Mahajabin and one son named Tariq. It appears that one Shri Ahsan Ahmed and Shri Rehan Ahmed had filed one suit being No.13/1972 on 23/2/1972 in the Court of Additional District & Sessions Judge No.1, Jaipur City, Jaipur (hereinafter referred to as “the trial court”) seeking specific performance of the agreement dated 4/10/1967, allegedly executed by the said Gulam Mohiuddin and Saeeduddin in respect of the suit properties being municipal No.52 to 57. 3. The said suit was contested by the said defendants Gulam Mohiuddin and Saeeduddin by filing two separate written statements. It appears that on 28.07.1977, the plaintiff Ahsan Ahmed was transposed as the defendant in the suit. Thereafter on 11.05.1978, one compromise was entered into between the plaintiff Rehan Ahmed and Gulam Mohiuddin-defendant No.1. In the said compromise the said plaintiff Rehan Ahmed stated that he did not want to claim any relief against the defendant No.2 Saeeduddin, and therefore the suit be dismissed against him. It further appears that however the said compromise could not be verified or attested before the court and the same remained pending on the file. Thereafter, on 09.05.1979, the said suit was dismissed for default, however, the same was restored on the same day by the court as the compromise was to be recorded. On the very day i.e. on 09.05.1979, the plaintiff Rehan Ahmed and defendant Gulam Mohiuddin submitted another compromise application, which was recorded by the court. Thereafter, on 09.05.1979, the said suit was dismissed for default, however, the same was restored on the same day by the court as the compromise was to be recorded. On the very day i.e. on 09.05.1979, the plaintiff Rehan Ahmed and defendant Gulam Mohiuddin submitted another compromise application, which was recorded by the court. On the basis of the said compromise, the trial court passed the decree on 09.05.1979, which reads as under:- ^^1- izfroknh Jh xqyke eksfgÅíhu oknxzLr edku o nqdkukr dk foØ; i= oknh Jh jsgku vgen ds i{k es 11&5&78 ¼tks rkjh[k vk xqtj pqdh gS½ fy[kokdj jftLVªh djok nsxk rFkk foØ; ewY; dh ‘ks”k jkf’k 25]000 :i;s lc jftLVªkj ds le{k izkIr dj ysxkA ;fn izfroknh la[;k 1 ;kfu xqyke eksfgÅíhu [kka bl vof/k es foØ; i= dk iathdj.k us djok;s rks oknh jsgku vgen dks fMØh dh btjk; djok dj U;k;ky; }kjk foØ; i= vius fgr es ithad`r djokus dk vf/kdkj gksxkA jftLVªh dk lkjk [kpkZ oknh jsgku ,oa izfroknh Jh xqyke eksfgÅíhu [kak vk/kk vk/kk cjknkLr djsaxsA bl lEca/k es izfroknh la[;k 1 fyf[kr es oknh jsgku vgen ls tc Hkh vk/kk [kpkZ ekaxsxk rks mDr oknh jlhn izkIr djds vnk dj nsxkA vkSj bl dkj.k ls izfroknh la[;k 1 jftLVªh djkus dh vof/k c<+kus dk vf/kdkjh ugh gksxkA izfroknh la[;k us jftLVªh ds vk/ks [kpsZ ds isVs 1000 :i;s oknh jsgku vgen ls izkIr dj fy, gSA ,u-vks-lh- izkIr djus dh lEiw.kZ ftEesokjh izfroknh la[;k 1 dh gksxhA 2- fooknxzLr lEifr dh rhljh eafty es izfroknh la[;k 2 vFkkZr lbnqíhu [kak jg jgk gS ftldks izfroknh la[;k 1 foØ; i= dh jftLVªh djokus ds iwoZ [kkyh djokdj oknh jsgku vgen dk dCtk okdbZ djok nsxk o vU; fdjk;snkjku ls tks bl le; fooknxzLr edku es vkckn gS oknh jsgku vgen ds gd es fdjk;sukes fy[koknsxkA Jh vglku vgen tks iwoZ es oknh la[;k 1 dk bl foØ; ls dksbZ ljksdkj ugh jgsxkA 3- i{kdkjku bl nkos dk [kpkZ viuk viuk cjnkLr djsaxsA 4- pawfd oknh us izfroknh lbZnqíhu [kka ds fo:) dksbZ dk;Zokgh ugh pkgh gS vr% mlds fo:) nkok [kkfjt fd;k tkrk gSA 5- oknh ,glku vgen dk uke 28&7&77 ds vkns’k ls oknh dh [kphZ ls gVkdj mls vkSipkfjd izfroknh cuk;k x;k Fkk vkSj pawfd blds fo:) Hkh oknh jsgku vgen us dksbZ lgk;rk ugh pkgh vr% blds fo:) Hkh nkok [kkfjt fd;k tkrk gSA ^^ 4. It appears that thereafter on 19/3/1986, the Execution Petition being No.12 of 1986 came to be filed by the plaintiff-decree holder Rehan Ahamad against the defendant-judgment debtor Ghulam Mohiuddin. In the said petition, the said judgment debtor Ghulam Mohiuddin filed an application on 6/2/1988 under Section 28 of the Specific Relief Act seeking recession of the contract, on the ground that the decree holder Rehan Ahamad had failed to make the payment of Rs.25,000/- as per the decree in question. During the pendency of the said application under Section 28, the said judgment debtor Ghulam Mohiuddin died on 9/11/1989, executing a Will dated 27/6/1979 in favour of his nephew General Tariq, who happened to be the son of his brother Saeeuddin. The Executing Court impleaded the said General Tariq as the legal representative of the said judgment debtor Ghulam Mohiuddin as per the order dated 3/9/1998. The Executing Court thereafter dismissed the said application of late Shri Ghulam Mohiuddin filed under Section 28 of the Specific Relief Act, vide the order dated 9/12/1998. Being aggrieved by the said order, the said General Tariq as the Legal Representative of Ghulam Mohiuddin filed the revision petition being S.B. Civil Writ Petition No. 55 of 1999 before the High Cort, which came to be dismissed by the High Court vide the order dated 2/6/2005. The Special Leave Petition filed before the Supreme Court against the said order was also dismissed on 11/8/2006. 5. Since the Execution Petition being No.12 of 1986 was filed by the judgment creditor Rehan Ahmad against Ghulam Mohiuddin and since the said Ghulam Mohiuddin died on 9/11/1989, the said Rehan Ahmad filed an application for impleading Saeeduddin, Hamiduddin and General Tariq as the party-judgment debtors in the execution proceedings on 18/5/1990. The said application was objected to by the said Saeeduddin on the ground that Shri General Tariq was the only legal representative of Ghulam Mohiuddin. Pending the said application, the said Hamiduddin also expired on 30/09/1991, and therefore, the Court vide the order dated 23/11/1998 ordered to substitute the said General Tariq and the legal representatives of Hamiduddin as the legal representatives of the deceased judgment debtor Ghulam Mohiuddin. Subsequently, the said Saeeduddin also expired on 16/11/2000. 6. Pending the said application, the said Hamiduddin also expired on 30/09/1991, and therefore, the Court vide the order dated 23/11/1998 ordered to substitute the said General Tariq and the legal representatives of Hamiduddin as the legal representatives of the deceased judgment debtor Ghulam Mohiuddin. Subsequently, the said Saeeduddin also expired on 16/11/2000. 6. As stated here-in-above the proceedings initiated by the judgment debtor Ghulam Mohiuddin under Section 28 of the Specific Relief Act had stood terminated by the order of the Supreme Court passed on 11/08/2006. Thereafter, Smt. Akhter Un Nisan, the petitioner herein, who happened to be the wife of late Shri Saeeduddin, and mother of General Tariq, filed an objection petition under Section 47 of CPC; inter-alia stating therein that the decree was null and void and inexecutable. The present respondent decree holder Rehan Ahamad filed his reply to the said application, to which rejoinder was also filed by the petitioner. The said objections filed by the petitioner under Section 47 of CPC were dismissed by the Executing Court vide the impugned order dated 3/5/2007, against which the present revision petition has been filed. 7. In the instant case, the learned counsels for the parties have raised number of issues and relied upon plethora of judgments in support of their respective submissions. The crux of the submissions made by the learned Senior Counsel Mr. Ajeet Bhanedari for the petitioner is that the decree in question passed by the Trial Court in the suit was obtained by fraud by the respondent-decree holder, and therefore, the same was null and void. He also submitted that the conditions contained in the decree having not been fulfilled by the respondent, the same was inexecutable. According to him, the Trial Court, while passing the decree, had not verified the contents thereof and had passed the decree without any application of mind. He further submitted that the Executing Court also while dismissing the objection application of the petitioner did not apply its mind and got swayed away by the allegations made by the respondent that the objection application was filed by the petitioner, after her son General Tariq failed to get the favourable order in the proceedings under Section 28 of the Specific Relief Act. Taking the Court to the written-statements of the original defendants i.e. late Shri Ghulam Mohiuddin and late Shri Saeeduddin, he submitted that the suit property being the joint property of both the defendants, Ghulam Mohiuddin alone could not have entered into the alleged compromise with the respondent-plaintiff, and the Trial Court also should not have passed the decree on 9/5/1979 on the basis of such compromise, more particularly when it was stated that the registered sale deed would be executed by Ghulam Mohiuddin in favour of Rehan Ahmad on 11/5/1978, which date had already elapsed one year before the date of decree. Drawing the allegation of the Court to the said decree, he submitted that it was specifically mentioned in the said decree that the defendant No.2 i.e. Saeeduddin, husband of the present petitioner was in possession of the third floor of the disputed property, and that judgment debtor Ghulam Mohiuddin had to get the said portion of the property vacated from Saeeduddin, prior to the registration of the sale deed. He submitted that such a condition was contrary to the other term of the compromise to the effect that the respondent-plaintiff having not claimed any relief against the defendant Saeeduddin, the suit had stood dismissed against Saeeduddin. The learned counsel Mr. Bhandari has relied upon the decisions of the Apex Court in case of Hamza Haji vs. State of Kerala & Anr. 2006(7) SCC 416, in case of N. Khosla vs. Rajlakshmi (Dead) & Ors., 2006(3) SCC 605 , in case of A.V. Papayya Sastry and Ors. vs. Govt. of A.P. & Ors., 2007(4) SCC 221 , and in case of T.Vijendradas & Anr. vs. M. Subramanian & ors., AIR 2008 SC 563 to submit that the decree obtained by fraud was not executable. He also relied upon the decisions of the Apex Court in case of Vasudev vs. Rajabai, 1971 (1) SCR 66 and in case of Samir Vs. Track S. Pvt. Ltd., AIR 1996 SC 2012 to submit that the Executing Court cannot go beyond the decree, and that it must take the decree according to its tenor. 8. However, the learned Senior Counsel Mr. Track S. Pvt. Ltd., AIR 1996 SC 2012 to submit that the Executing Court cannot go beyond the decree, and that it must take the decree according to its tenor. 8. However, the learned Senior Counsel Mr. M.M. Ranjan for the respondent-plaintiff-decree holder vehemently submitted that the application under Section 47 of CPC was filed by the petitioner-objector after her son General Tariq having failed to obtain any relief in the proceedings under Section 28 of the Specific Relief Act right upto Supreme Court. According to him, the said application having been filed misusing the process of law and to frustrate the decree, the Executing Court has rightly dismissed the same, and this Court should not interfere with the said impugned order. Mr. Ranjan also taking the Court to the voluminous record of the Trial Court and the Executing Court, submitted that the defendant No.2-Saeeduddin Khan during his lifetime had not challenged the decree in question, and therefore, the petitioner, who happened to be his wife, also could not have challenged the said decree. According to Mr. Ranjan the said defendant Saeeduddin had admitted in his written-statement that he was not the owner of the suit property, and his brother Ghulam Mohiuddin alone was the owner as per the family settlement arrived at between them, and that the respondent having acted upon such admission and having altered in his position on the basis of such admission, by entering into the compromise with the other defendant Ghulam Mohiuddin, it does not lie in the mouth of the present petitioner to say that the decree in question was null and void or inexecutable. He further submitted that one compromise was already entered into by the respondent-plaintiff with the said Ghulam Mohiuddin – defendant on 11/5/1978, however, the said compromise could not be attested before the Court, and therefore, again a fresh compromise on the same terms was entered into between them on 9/5/1979, and therefore, the so called anomaly of dates appears in the decree, which had no significance. Placing reliance upon the decision of the Apex court in case of Kale vs. Deputy Director Consolidation, AIR 1976 SCC 119 , he submitted that the document in the nature of memorandum of an earlier family arrangement need not be registered, and that in the instant case, the family settlement having taken place between the two brothers Ghulam Mohiuddin and Saeeduddin in the year 1955-56, which was reduced into writing on 17/09/1976, did not require registration. He also has relied upon the decisions of the Apex Court in case of Jai Narain Parasurampuria vs. Pushpa Devi Sarraf, (2006) 7 SCC 766; in case of Motilal Padampat Sugar Mills vs. State of Uttar Pradesh & Ors., 1979(2) SCC 409 ; in case of Mahalaxmi Motors vs. Mandal, 2007 (11) SCC 714 to submit that the respondent having altered his position on the basis of the admission made by Saeeduddin, the presentpetitioner, who happened to be his wife, was estopped from challenging the decree. Mr. Ranjan has also relied upon the decision of the Apex Court in case of Ittyaveera vs. Varkey, AIR 1964 Supreme Court 907 to buttress his submission that if the party aggrieved did not take appropriate steps to have the error corrected, the decree would hold good, and it would not be open to challenge the decree on the basis of the same being nullity. Relying upon the decision of Supreme Court in case of Hardevinder Singh vs. Paramjit Singh, 2013(1) WLC SC(Civil) 246, he submitted that the person, who is not the party to the decree under challenge, does not challenge the same before the Appellate Forum, with the leave of the Court, such decree would be binding to him also. Mr. Ranjan also relied upon the decision of the Apex Court in case of Balwant N. Vishwamitra vs. Yadav S. Mule, 2004(2) WLC (SC) Civil 504 and in case of Vasudev Dhanji Bhai Modi vs. Raja Bhai Abdul Rehman & Ors., (1970) 1 SCC 670 to submit that the decree passed by the Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or incidental proceedings and that the Executing Court should not entertain the objection as to the validity of the decree even on the ground of absence of the jurisdiction of the Court which passed the decree. 9. 9. In the instant case, though number of issues have been raised by the learned counsels for both the sides, moot question that goes to the root of the matter is, whether the decree in question is inexecutable or is a nullity in the eye of law? As stated here-in-above, the present petitioner-objector had raised the objections under Section 47 of CPC in the execution proceedings filed by the respondent-judgment creditor on the ground that the decree in question was a nullity, and therefore, not capable of execution. So far as the scope of Section 47 is concerned, the Apex Court in case of Dhurandhar Prasad Singh vs. Jai Prakash University & Ors., (2001)6 SCC 534 has laid down, as under :- “24. The exercise of powers under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that executing Court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing” 10. It is also settled legal position that though the Executing Court cannot go beyond the decree, the validity of the decree could be examined by the Executing Court, if the decree is challenged on the ground of being nullity and inexecutability. The Apex Court in case of Chiranjilal Shrilal Goenka vs. Jasjit Singh & Ors., (1993) 2 SCC 507 has observed that “A decree passed by a court without jurisdiction on the subject-matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party” 11. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party” 11. While drawing up the distinction between a void decree and wrong, incorrect or irregular decree, the Apex Court in case of Balvant N. Viswamitra & Ors. vs. Yadav Sadashiv Mule (Dead) through LRs & Ors. (200 8 SCC 706 held, as under :- “The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings. It is amply clear that all irregular or wrong decree or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected to in execution or collateral proceedings” 12. Now, in the light of aforesaid legal position, let us examine the validity of the decree in question. To recapitulate the facts, it may be stated that the suit was initially filed by the respondent Rehan Ahmad and Ahsan Ahmad against Shri Ghulam Mohiudeein and Shri Saeeduddin seeking specific performance of the agreement dated 4/10/1967 allegedly executed by the said defendants in favour of the respondent-plaintiff. In the said suit, the plaintiff Ahsan Ahmed was transposed as the defendant on 28/7/1977 and then one compromise was entered into between the respondent-plaintiff Rehan Ahmed and the defendant No.1-Ghulam Mohiudeein on 11.5.1978. Since the said compromise could not be attested before the Court, it remained pending and then on 9/5/1979 another compromise was placed on record. In the said suit, the plaintiff Ahsan Ahmed was transposed as the defendant on 28/7/1977 and then one compromise was entered into between the respondent-plaintiff Rehan Ahmed and the defendant No.1-Ghulam Mohiudeein on 11.5.1978. Since the said compromise could not be attested before the Court, it remained pending and then on 9/5/1979 another compromise was placed on record. As per the said compromise, the Trial Court passed the decree on 9/5/1979 against the said Ghulam Mohiudeein alone, dismissing the suit against the defendant No.2 Saeeduddin also against Shri Ahsan Ahmed, who was transposed as the defendant, on the ground that the plaintiff had not claimed any relief against the said two defendants. Apart from the fact that the language of the decree itself was self contradictory, there were number of anomalies appearing in the said decree. The Trial Court also does not appear to have recorded its satisfaction as required under Order XXIII, Rule 3 of CPC. It cannot be gainsaid that as per the said provision, it has to be proved to the satisfaction of the Court that the suit has been adjusted wholly or in part by the lawful agreement or compromise in writing and signed by the parties. In the instant case, neither the Trial Court had recorded its satisfaction nor the compromise was signed by all the parties to the suit. The Court therefore is of the opinion that the decree in question appears exfacie to be dehorse the provisions of Order XIII, Rule 3 of CPC. 13. Further, as transpiring from the decree itself, the respondent-defendant had to pay Rs.25,000/- and get the sale deed registered from the defendant Ghulam Mohiudeein on or before 11/5/1978, whereas the decree was passed on 9/5/1979. This Court fails to understand as to how such a direction to make payment and to get the sale deed registered could be given fixing the date which had elapsed one year back. Further, it was also directed that the defendant Ghulam Mohiudeein shall get the portion of third floor of the disputed property vacated, which was in possession of the defendant No.2 Saeeduddin before the registration was got done. Further, it was also directed that the defendant Ghulam Mohiudeein shall get the portion of third floor of the disputed property vacated, which was in possession of the defendant No.2 Saeeduddin before the registration was got done. This Court also fails to understand as to how the said portion could have been vacated by the defendant Ghulam Mohiudeein from the defendant No.2 Saeeduddin on or before 11/5/1978 on which date the registration was to be done, when the decree was passed on 9/5/1979. It is also pertinent to note that on one hand, the respondent-decree holder had stated in the compromise that he did not claim any relief against the defendant-Saeeduddin and the suit be dismissed against him, and on the other hand the defendant Ghulam Mohiuddin was asked to get vacant possession of part of suit premises, which was in possession of the defendant Saeeduddin. Thus indirectly a relief was also sought against the defendant Saeeduddin but his signature was not obtained in the compromise recorded by the Trial Court. From the anamolies and inconsistencies emerging from the decree in question, the Court has no hesitation in holding that there was total non application of mind on the part of the Trial Court while passing the decree on compromise and that the said decree was passed in utter disregard of the provisions contained in Order XXIII, Rule 3 of CPC, rendering the decree nullity and inexecutable. 14. As rightly submitted by the learned Senior Counsel Mr. Bhandari for the petitioner, a decree could be executed only when it is executable, and if the decree is not executable, the Executing Court cannot proceed to execute the decree. Though as a matter of general rule, the Executing Court cannot go beyond the decree and the decree passed by the Court of competent jurisdiction deserves to be executed, the decree, which is a nullity and inexecutable could be challenged in the execution proceedings, and the Executing Court is bound to consider such objections under Section 47 of the CPC. It is incumbent on the part of the Executing Court to see whether the decree sought to be executed is executable or not before assuming the jurisdiction to execute the same, otherwise the Executing Court would be exercising its jurisdiction in futility rendering such exercise to be void. It is incumbent on the part of the Executing Court to see whether the decree sought to be executed is executable or not before assuming the jurisdiction to execute the same, otherwise the Executing Court would be exercising its jurisdiction in futility rendering such exercise to be void. Since the Trial Court had not recorded its satisfaction as to the legality and executability of the decree in question and had passed the decree on the basis of the compromise arrived at between the respondent-plaintiff, and the deceased defendant Ghulam Mohiudeein, the Court has no hesitation in holding that the said decree passed by the Trial Court was without jurisdiction, inexecutable and a nullity, and that Executing Court could not have proceeded further to execute such decree. 15. It was sought to be submitted by the learned counsel Mr. M.M. Ranjan for the respondent that a family settlement had already taken place between the said Ghulam Mohiudeein and Saeeduddin and that the said Saeeduddin had also admitted in his written statement and other proceedings that he had no right or interest in the suit property, and therefore the respondent-plaintiff had entered into the compromise with the defendant Ghulam Mohiudeein only. Mr. Ranjan also submitted that the said decree was also not challenged by said Saeeduddin during his lifetime, and now when it is sought to be executed, his wife i.e. the present petitioner had filed the objections under Section 47 misusing the process of law. The said submissions of the learned counsel could not be accepted. Apart from the fact that the learned counsel Mr. Ranjan had failed to point out any such admission from the written-statement filed by said Saeeduddin to the effect that he did not have any right, title or interest in the suit property, it appears that he had claimed joint ownership with the other defendant Ghulam Mohiudeein who happened to be his brother. Not only that the said Saeeduddin was also in possession of part of the disputed property, and therefore, also it could not be said that he did not have any right or interest in the property. Not only that the said Saeeduddin was also in possession of part of the disputed property, and therefore, also it could not be said that he did not have any right or interest in the property. Hence, without expressing any opinion on the issue whether any family settlement in fact had taken place between the said defendants or not and whether such family settled required registration or not, suffice is to say that the said Saeeduddin being in possession of part of the disputed property had interest in the said property. It is true that when the decree was sought to be executed against the original defendant judgment debtor Ghulam Mohiudeein, he had filed the application under Section 28 of the Specific Relief Act seeking recession of the Court on the ground that the respondent-plaintiff had not paid the amount as directed in the Court. It is also true that after the death of said Ghulam Mohiuddin, his legal representative General Tariq, who also happened to be the son of Saeeduddin and the present petitioner had prosecuted the said proceedings, and had not succeeded up to the Supreme Court, and that thereafter the objections under Section 47 were filed by the present petitioner, however, if some body had persuaded the legal remedy, it could not be said that there was misuse of process of law at the instance of the petitioner. 16. As a matter of fact, the issue of non-executability of the decree or the decree being a nullity was never raised by the said Ghulam Mohiudeein or his successor General Tariq. The said proceedings were under Section 28 of the Specific Relief Act only and till the said proceedings were pending, the execution proceedings were not being proceeded further by the Executing Court. It was only when the said proceedings were terminated in the Supreme Court, the decree was sought to be executed by the respondent against the present petitioner, who was admittedly in possession of part of the disputed property, and therefore the petitioner filed the objections under Section 47 of CPC challenging the validity and executability of the decree in question. It was only when the said proceedings were terminated in the Supreme Court, the decree was sought to be executed by the respondent against the present petitioner, who was admittedly in possession of part of the disputed property, and therefore the petitioner filed the objections under Section 47 of CPC challenging the validity and executability of the decree in question. Even if it is believed that the petitioner-objector had filed the objections after the proceedings under Section 28 of the Specific Relief Act had stood terminated in the Supreme Court, the decree itself being inexecutable and null and void, the Court is of the opinion that the Executing Court has committed an error in dismissing the said objections filed by the petitioner. 17. In view of the above, the impugned order passed by the Executing Court is set aside. It is held that the decree dated 09/05/1979 passed by the Trial Court in the suit No.13/72 is inexecutable and a nullity. The objections filed by the petitioner are therefore allowed. The present petition stands allowed accordingly.