JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. K. Agarwal, learned Senior counsel assisted by Mr. N. Deka, learned counsel for the petitioners. Also heard Mr. P.J. Saikia learned counsel for the respondent. 2. In this revision petition order dated 31.7.2012 passed by the learned Civil Judge, Dibrugarh in Misc. (J) Case No. 1/2012 arising out of Money Execution Case No. 2/2007 is under challenge. The respondent as the plaintiff filed Money Suit No. 58/2003 in the court of the then Civil Judge (Senior Division) at Tinsukia against the petitioners as defendants for recovery of Rs. 1,45,019.00, further interest on the decreetal amount @ 24% per annum from 21.9.2003 till recovery alongwith cost. The summons were duly served on the defendants petitioners but as they failed to appear and contest, the suit was decreed ex-parte. The said decree was put to execution which was transferred to the court of learned Civil Judge, Dibrugarh for execution as the defendants petitioners are carrying on business within the jurisdiction of the court under Dibrugarh district. 3. The execution proceeding was initiated by the decree holder respondent upon which Money Execution Case No. 2/2007 was registered in the said court of learned Civil Judge, Dibrugarh. Having come to know about the pendency of said execution proceeding the judgment debtors petitioners filed a petition in the month of January, 2008 under Order 21 Rule 26 CPC read with Section 22 (1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred as the Act 1985). In the said petition the judgment debtor petitioners contended that due to heavy loss in the business they preferred a reference being Case No. 501/2003 before the Board of Industrial and Financial Reconstruction (BIFR) for declaring the judgment debtor company as sick industrial company. The BIFR vide order dated 20.9.2004 made a declaration u/s 17 of the Act, 1985 holding that the company is a sick industrial Company in terms of Section 3(1)(o) of the Act, 1985. In view of the aforesaid declaration further proceeding of the Money Execution was sought to be stayed in accordance with the provisions of Section 22 of Act 1985. The learned Civil Judge, Dibrugarh after hearing the parties and on perusal of the materials on record rejected the petition vide order dated 27.6.2011 directing the decree holder respondent to take steps in the execution proceeding. 4. The learned Civil Judge, Dibrugarh after hearing the parties and on perusal of the materials on record rejected the petition vide order dated 27.6.2011 directing the decree holder respondent to take steps in the execution proceeding. 4. On 19.9.2011 the judgment debtor petitioners filed another application under Order 21 Rule 26 CPC for stay of the execution of the decree for a limited period. The respondent as a decree holder filed written objection against the said petition opposing the prayer for stay of the execution proceeding. The petitioners sought for stay of the execution proceeding till March, 2012 on the ground that reference case before BIFR was pending and the judgment debtor petitioners would not be able to pay the entire amount in view of the order of BIFR. The learned court below rejected the said petition vide order dated 16.12.2001 and refused to stay the execution proceeding. 5. The petitioners filed Civil Revision Petition No. 5/2012 under Article 227 of the Constitution of India challenging both the rejection order dated 27.6.2011 and 16.12.2011. Vide order dated 5.11.2012 the revision petition was disposed of granting liberty to the petitioners to file application u/s 47 of the CPC with a direction for consideration of the same and dispose of on merit. 6. The petitioners availing the liberty filed an application u/s 47 CPC and the court of learned Civil Judge, Dibrugarh registered as Misc. (J) Case No. 1/2012. In the said application the relevant facts were stated citing the provisions under the Act 1985. It was also raised in the said petition that though the principal amount was Rs. 93,400/- in the plaint of Money Suit No 58/2003, the judgment debtors petitioners paid an amount of Rs. 10,000/- vide cheque dated 23.11.2005. Subsequent thereto the petitioners issued cheque dated 22.2.2006 for Rs. 10,000/- another one for Rs. 5,000/- dated 27.4.2006 and further another cheque dated 19.10.2007 for Rs. 10,000/-. The decree holder respondent encashed cheque dated 22.2.2006 for Rs. 10,000/- but returned the other cheques as the matter was sub judice. The BIFR in its order dated 30.10.2007 while deciding the objection raised by creditors, observed that the dues of unsecured creditors would be paid at the rate of 54% of the outstanding principal amount only. In the said application it was mentioned further by the petitioners that they were ready and willing to pay the amount of Rs. The BIFR in its order dated 30.10.2007 while deciding the objection raised by creditors, observed that the dues of unsecured creditors would be paid at the rate of 54% of the outstanding principal amount only. In the said application it was mentioned further by the petitioners that they were ready and willing to pay the amount of Rs. 30,436/- considering the fact that out of the total outstanding 54% of amount was allowed to be paid to the creditors by the BIFR. Accordingly in the said application the petitioners sought for a declaration that the judgment and decree dated 23.12.2005 passed in Money Suit No. 58/2003 and the orders passed in Money Execution Case No. 2/2007 be declared as null and void, keeping in view the stipulations of section 22 of the Act 1985. 7. The respondent filed the written objection. In the said objection it was raised that the declaration dated 20.9.2004 was made by the BIFR when the Money Suit No. 58/2003 was pending in the learned Civil Judge, Tinsukia. During the pendency of the suit the said issue was not raised and there was no challenge against the judgment and decree, so the petitioners for the first time cannot raise about the status of the Company declared by the BIFR in the execution proceeding. It was also raised before the executing court that it had no jurisdiction to declare the decree as null and void as the decree was transferred for its execution by another court. The decree was not challenged in any other higher court and accordingly due to lack of jurisdiction of the executing court for declaring the original decree as null and void, the petition is liable to be dismissed. The said petition which was registered as Misc. (J) Case No. 1/2012 was dismissed vide order dated 31.7.2012. Being aggrieved the petitioners filed this revision petition. 8. Mr. Agarwal submits that learned court below while deciding the application u/s 47 of CPC failed to apply its jurisdiction. The learned court below took note of the scope of Section 47 of the CPC in its wrong perspective. (J) Case No. 1/2012 was dismissed vide order dated 31.7.2012. Being aggrieved the petitioners filed this revision petition. 8. Mr. Agarwal submits that learned court below while deciding the application u/s 47 of CPC failed to apply its jurisdiction. The learned court below took note of the scope of Section 47 of the CPC in its wrong perspective. The court below as the transferee executing court came to the finding that the judgment and decree passed by the trial court was not set aside and the judgment debtors petitioners did not contest the suit and even failed to prove the contention that the judgment debtor company was declared as sick industry. So long as the decree is not set aside, the court is bound by the said decree. Accordingly, it is his contention that the court below erred in applying its jurisdiction and as such it is required to be interfered. Further once the reference Case No. 501/2003 was registered the trial court is not competent to adjudicate the dispute and decide the suit. Though the decree was an ex-parte and the recovery process is going on, the court below ought to have restrained the respondent from execution of the same declaring the decree as null and void. The court below only on the ground holding it as the transferee executing court decided not to invoke its jurisdiction under Section 47 CPC which is palpably wrong. 9. Mr. Saikia on the other hand, countered the submission of Mr. Agarwalla. It is his contention that the petitioners cannot raise the issue in respect of the order passed by the BIFR inasmuch as they did not even appear before the trial court on receipt of summons and as the said fact was not brought before the trial court, the question of inherent lack of jurisdiction of the trial court to pass the decree cannot be raised. The learned court below applied its jurisdiction and disposed of the said petition u/s 47 CPC as per law. Nowhere the court below refused to apply its jurisdiction only because of the fact that the court was a transferee executing court. It is further submitted that the earlier two applications under Order 21 Rule 26 CPC were rejected passing speaking orders. Nowhere the court below refused to apply its jurisdiction only because of the fact that the court was a transferee executing court. It is further submitted that the earlier two applications under Order 21 Rule 26 CPC were rejected passing speaking orders. While dismissing the said applications for stay of the execution proceeding the court below held that the petitioner company is a profit making company and accordingly the question of application of the BIFR order holding the company as a sick one does not arise. The said finding was not challenged and set aside by the higher court. The same binds the petitioner company and as such the learned court below cannot enter into the said issue once again which was raised in the petition u/s 47 CPC. It is further submitted that the learned court below came to the conclusion that as the judgment and decree was passed by the trial court and the petitioners did not move the trial court by stating all those facts, the executing court cannot go behind the decree in order to declare the same as null and void. It is also raised that during the pendency of execution proceeding and more specifically in the petition itself u/s 47 CPC the petitioners offered an amount out of the decreetal property. The said stand of offering itself is waiver of the right to raise the alleged bar u/s 22 of 1985 Act. With the said submission it is his contention that revision petition is liable to be dismissed. 10. I have given due consideration to the submissions of the learned counsel. In Kiran Singh and Others vs. Chaman Paswan and Others, 1954 SC 340, it was held that a decree passed by the court without jurisdiction is a nullity and its invalidity could be set up even at the stage of execution and collateral proceedings. Again in Sunder Dass vs. Ram Prakash, (1977) AIR SC 1201, it was held that executing court cannot go behind the decree. But under Section 47 CPC if it is pleaded that the decree was a nullity as the court passing it lacks of inherent jurisdiction the executing court can entertain such objection. In Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 the Hon'ble Apex Court discussed the scope of an executing court under Section 47 CPC. But under Section 47 CPC if it is pleaded that the decree was a nullity as the court passing it lacks of inherent jurisdiction the executing court can entertain such objection. In Dhurandhar Prasad Singh vs. Jai Prakash University and Others, (2001) 6 SCC 534 the Hon'ble Apex Court discussed the scope of an executing court under Section 47 CPC. It held that u/s 47 CPC all questions arising between the parties to the suit in which the decree was passed relating to execution, discharge or satisfaction of the decree are to be determined by the executing court and not by a separate suit. Power of the court u/s 47 CPC are different and much narrower than its power deciding appeal, revision or review. Accordingly executing court can allow the objections u/s 47 of the Code to the executability of the decree if it is found that the same is ab-initio nullity apart from the ground that the decree is not capable of execution in the law either because the same was passed in ignorance of such a provision of law. 11. The learned court below took note of the fact u/s 47 CPC all questions relating to execution, discharge of a decree are to be determined by the executing court but when the prayer is that the judgment and decee was not binding on the judgment debtor and requires to be set aside as they were not a party to the proceeding, section 47 CPC does not have its applications. The court below considering itself as the transferee court held the prayer of the petitioners could not be granted as the same was passed ex-parte and they did not contest the suit. The judgment and decree passed by the Civil Judge (Senior Division), Tinsukia was not set aside and accordingly Section 47 was not applicable. The court below further held that a Section 47 CPC application can be allowed on the finding that the decree is ab initio nullity apart from being executable but as the court below was only the executing court the fact that whether the decree was void ab intio could be decided and looked into by the court which passed the judgment and decree. Finally the court below came to the finding that the petitioners had a right and to enforce its right through the provision of Section 47 CPC unless the petitioners are given liberty to substantiate the right that would be gross injustice. Expressing its inability to decide the petition u/s 47 CPC as not maintainable it before the said court below and holding that the petitioners judgment debtor could file the same in the appropriate court. The petition was dismissed. 12. From the said finding it is an out and out wrong application of the jurisdiction keeping in view the scope u/s 47 CPC. The court is an executing court and only because of the fact that it is transferee executing court and the decree put into execution was not passed by the said executing court as the trial court, it cannot be held that the said transferee court cannot invoke its jurisdiction u/s 47 CPC to decide the executability of the decree. The petitioners judgment debtors are not required to come to the court of learned Civil Judge, Tinsukia being the original executing court in order to raise the said issue of executability of the decree u/s 47 CPC. This view of the court below is clear and apparent from the conclusion while dismissing the application that the petitioners judgment debtors may file the application u/s 47 CPC before the appropriate court as because the same before it was not maintainable. 13. In Sunder Dass vs. Ram Prakash (supra) the Hon'ble Apex court held that nullity of a decree can be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution or even in collateral proceedings. The executing court can therefore entertain an objection that the decree is nullity and refuse to execute the decree. By doing so the executing court would not incur reproach that it is going behind the decree because the decree being null and void. There would really be no decree at all. The learned court below from its discussions made in the impugned order did not even enter into the issue raised before it as to whether the decree before it could be executed keeping in view Section 22 of the Act 1985 and whether the stage of holding the same as nullity still persists. The learned court below from its discussions made in the impugned order did not even enter into the issue raised before it as to whether the decree before it could be executed keeping in view Section 22 of the Act 1985 and whether the stage of holding the same as nullity still persists. No doubt the petitioners failed to raise the issue before the trial court and due to negligence of the petitioners a decree was passed which is yet to be executed and the issue raised before the court below was in respect of its executability. The court below was pre determined that it being a transferee executing court had no jurisdiction to entertain the said petition u/s 47 CPC. 14. In my considered opinion the said view is wrong. The court below is the executing court and clothed with all the powers as stipulated in the Code of Civil Procedure, 1908. Nowhere in the said code restrains the transferee court from deciding an application u/s 47 CPC. Section 42 CPC specifically provides that the transferee executing court shall have the same powers in executing such decree as if it had been passed by itself. The finding of the court below leads me to the conclusion that the learned court below failed to exercise its jurisdiction. From the said discussions and considering the various ratio laid down by the Hon'ble Apex Court, I am of the opinion that it would be proper to set aside the impugned order and remand the same to the court of learned Civil Judge, Dibrugarh and to decide the same afresh after hearing the parties, which I accordingly do. 15. The parties to this revision petition shall appear before the learned executing court below and on production of the order passed in this revision petition shall fix a date for hearing of the application filed by the petitioners u/s 47 CPC and after hearing the same pass an order afresh keeping in view the observation made hereinabove. 16. This revision petition is disposed of on the aforesaid observations and directions without any costs. Interim order passed, if any stands vacated.