Dhanjibhai Khiyashibhai Gujrathi vs Daulatbee Mard Najakali on 8 March, 1956
It is, however, urged by Mr. Gupte for the respondents that even though the decree in question may not be a nullity, it would not be competent to the executing Court to enforce the decree because of the provisions of Section 63 of the Tenancy Act; and in support of this argument we have been referred to the decision of Broomfield and Mackslin JJ., in Bai Suraj v. Haribhai Motabhai (1942) 44 Bom. L.R. 907. In that case the plea against the executability of the decree was raised under Section 1 of the Bhagdari and Narwadari Act. In upholding the plea Mr. Justice Broomfield observed that though the general rule no doubt was that when a proper application is made for the execution of a decree which is not a nullity the Court cannot
refuse to execute it in the case before them there was a special statutory prohibition "which was addressed to the Court itself and which made execution illegal quite apart from whether the decree was good or bad as a decree. Inasmuch as Section 1 of the Bhagdari and Narwadari Act specifically and expressly directed that no civil Court shall execute a decree or issue a warrant for possession or any process in fact contrary to the provisions of the said section, the executing Court was justified in complying with the mandatory directions issued to civil Courts and in refusing to execute the decree. It may be conceded that though a decree may not be a nullity and in that sense though it may not be open to the executing Court to entertain a plea against the validity of a decree, if the execution of such a decree itself is barred by a statutory prohibition which is addressed to civil Courts, as in the case of Section 1 of the Bhagdari and Narwadari Act, it would be the duty of the executing Courts to comply with the statutory prohibition and to refuse to execute such a decree. Whether or not the prohibition contained in Section 63 of the Tenancy Act amounts to such a direction to the executing Court as would justify the executing Court in refusing to execute the decree it is unnecessary for us to consider in the present appeal. As I will presently point out, Section 63 cannot, in our opinion, be invoked in the present proceedings at all. That is why it is not necessary for us to decide whether the effect of Section 63 (1) would be similar to the effect of Section 1 of the Bhagdari and Narwadari Act; and that takes us to the second relevant consideration in this appeal.