ORDER
Kulkarni, J.
1. The decree-holder’s wife Pushpammal had filed an eviction case under Section 21(1)(h) of the Karnataka Rent Control Act in H.R.C.No. 7346 of 1980 against the judgment-debtor alleging that she required the petition premises bona fide and reasonably for the use of her husband and also alleging that her husband was going to retire in a short time and that the pension that he might get was insufficient for the maintenance of herself and her husband and that her husband would start a cycle shop in the petition premises and augment the income. The said eviction case in H.R.C. No. 7346/1980 resulted in an order of eviction as per the order dated 31-7-1982. The judgment-debtor being “aggrieved by the said order of eviction approached this Court in C.R.P. No. 1922 of 1983. In the said Revision the judgment-debtor did not challenge the findings recorded by the Court below, and requested only for time to vacate the petition premises. The decree-holder had remained absent in the said revision. This Court dismissed the Revision by giving to the judgment-debtor time till the end of November, 1984, subject to the condition that the judgment-debtor should continue to pay the amount equivalent to the rent during the period of bis occupation and that he should not damage the premises and should not induct any third person into it and should deliver vacant possession of the same to the landlady on or before 30th November, 1984.
2. It is undisputed that the landlady Pushpammal died on 4-7-1984. The landlady’s husband, i.e., the present decree-holder issued a notice to the judgment-debtor calling upon him to hand over vacant possession of the premises on the date stipulated by the Court. The judgment-debtor rushed to the Court and filed a suit for a permanent injunction alleging that the order of eviction on account of the subsequent event i.e., the death of the landlady, had become inexecutable and he sought for temporary injunction. The temporary injunction was refused and he withdrew the suit. Thereafter, he filed a Misc. Case No. 10114 of 1984 under Section 47 of the C.P.C. alleging that on account of the subsequent event, i.e., the death of the landlady Pushpammal the order of eviction had become inexecutable. The landlady’s husband, that is the present decree-holder, sued out execution in Execution No. 10338 of 1985. In that execution the judgment-debtor raised a contention that the decree bad become inexecutable in view of the subsequent event i.e., the death of the landlady. The executing Court upheld the contention of the judgment debtor and dismissed the execution on 3-10-1985. Hence, the decree-holder being aggrieved by the dismissal of the execution has approached this Court with C.R.P.No. 67 of 1986. The Court below allowed the Misc.Case No. 10114/84 filed under Section 47 C.P.C. Hence the decree-holder being aggrieved by the said order passed in Misc. case has approached this Court with C.R.P. No. 3852 of 1985.
3. That the landlady Pushpammal died on 4-7-1984 is undisputed.
4. Now the question is whether the order of eviction passed against the judgment-debtor in favour of the landlady Pushpammal had become inexecutable on account of the subsequent event that is her death.
5. The Court while disposing of the Miscellaneous Application has again gone into and reconsidered the evidence adduced by the parties in the eviction case and has tried to find out if the need referred to in H.R.C. case was the personal need of the landlady Pushpammal and if her personal need ended with her death. On reconsideration of the evidence it came to the conclusion that the need of Pushpammal had come to an end with her death and that the order of eviction had become inexecutable.
6. The Learned Counsel Sri Srinath for the judgment-debtor relied on Variety Emporium v. VRM Mohd. Ibrahim, . What has been stated therein is :
“In a suit for eviction on the ground of bona fide requirement of premises by landlord the subsequent events ought to be taken into account for the purpose of finding out whether the landlord still required the premises in possession of the tenant. In appropriate cases, the Court must have regard to events as they present themselves at the time when it is hearing the proceeding before it and mould the relief in the light of those events.”
As can be seen from paragraph 16 of the said decision, it appears that when the matter was pending in the Revisional Court or the Appellate Court the landlord had obtained possession of some other premises. He had come in possession of some other premises in another eviction case itself. It was not a case where the subsequent event referred to in the Supreme Court case took place in the course of the execution. The Supreme Court held that the Court had to examine, evaluate and appreciate those events and mould the decree accordingly. The Supreme Court held that the tenant was entitled to show even in the Revisional or Appellate Court that the need or requirement of the landlord on account of the subsequent events no more existed. In such a situation, as per the said case, it would be, incorrect to say that as a decree or order of eviction had been already passed against the tenant, he could not invite the Court to take into consideration the subsequent events. But the tenant can be precluded from so contending only when a decree or order for eviction has become final. Therefore, the principle laid down by the Supreme Court is that the tenant is entitled to show even during the pendency of the proceedings either in the Appellate Court or Revisional Court that on account of the subsequent events, the bona fide requirement of the landlord no longer exists or had ceased to exist. But the last portion in paragraph 16 reading “the tenant can be precluded from so contending only when a decree or order of eviction has become final” assumes much importance in the case. If the party were to be allowed to contend like that till he is actually evicted from the premises in execution of the decree, then it would be throwing the flood-gates of litigation open and the litigation can never come to an end. A tactful tenant taking advantage of 106 Rules in Order XXI C.P.C. can protract the execution proceedings for any number of years and till the death of the decree holder in the case. If in the course of the execution the decree-holder landlady were to die on account of the protraction of the proceedings, would it be proper to deny to her legal representatives the benefit obtained by her by or under the order of eviction. If such things were to be allowed on the happening of such event after the order of eviction has become final, no proceedings under the Rent Control Act can come to an end at all. Once the matter has become final, in the sense that the order of eviction has been finally upheld by the highest Court, it would be binding on the tenant and it would be a perversity of justice to allow the tenant to contend that the decree had become inexecutable on account of the subsequent event. In this case, during the pendency of the revision in this Court, the tenanl had conceded and did not challenge the finding regarding the bona fide and reasonable requirement and also the finding regarding comparative hardship. He was satisfied with the grant of some time to hand over vacant possession. He has not challenged the order of this Court by taking it to the Supreme Court. This order of eviction has become final against him once for all. The dictum laid down in para 16 of the aforesaid decision as “the tenant can be precluded from so contending only when a decree or order of eviction has become final” would assume importance in this case. The order of eviction in this case had become final once for all against the tenant and thus in my view, it would not be open to him in the course of the execution to reopen the question of bona fide and reasonable requirement once again in his attempt to show that the need of the landlady had come to an end and ceased to exist along with her death.
7. The learned Counsel Sri Srinath then relied on Hasmath Rai v. Raghunath Prasad, . The Supreme Court has again emphasised that the requirement pleaded by the landlord must subsist till the decree or an order of eviction has become final. Once an appeal against decree or order of eviction is preferred, the appeal being a continuation of the suit, the landlord’s need must be shown to continue to exist even at appellate stage. If the tenant is in a position to show even at the appellate or revisional stage that the need or requirement no more exists because of subsequent events, it would be open to him to point out such subsequent events and the Court including the Appellate or Revisional Court has to examine, evaluate and adjudicate the same. The said Supreme Court decision does not lay down that the subsequent events which have come into existence even after the eviction order had become final, should be taken into consideration even in the execution proceedings. The order of eviction is not passed in the Execution proceedings. What is done in the Execution case is that effect is given to the eviction order by issuing the warrant of delivery. Subsequent events that arose after the eviction order had become final and that had arisen during the pendency of the execution application, cannot thwart the execution proceedings and cannot be pressed into service against the landlady to deny delivery of possession to her. Then a reference was made to Rajagopal v. P. Revanna, 1974(1) KLJ 425. That was a case where the landlord had filed eviction petition alleging that he required the petition premises for his personal use and business. The question arose as to whether the L.Rs. of the landlord can continue the proceedings. In the said decision this Court has held :
“Such being the case, was it open to the legal representatives of Revanna to raise a plea that the shop is required by them for their business and for their occupation, when no such plea was raised by Revanna in his application for eviction. Under Section 21(1)(h) Revanna could have brought an action for eviction of the tenant on the ground that the premises were bona fide needed not only to him personally but also for the need of his sons or other dependents. He did not take up the cause of his sons or other relations. He pleaded that the premises were required for him for continuing his business. It was his personal requirement and on his death, his legal representatives cannot take up that plea and much less they could contend that the premises are bona fide required by them. The tenant had no opportunity to put forward his defence against the bona fide requirement of the legal representatives of Revanna. The evidence adduced in the case by the heirs of Revanra that the premises were needed by them, was therefore, contrary to the pleadings in the case and cannot therefore be looked into.”
There is an indication in the said ruling of this Court to show that if Revanna had contended that the premises was needed for the use of his sons, the matter would have been different Similar is the view taken by the Supreme Court in Pasupulet Venkateswarlu v. Motor and Gen. Traders, .
8. In Smt. Phool Rani and Ors. v. Sh. Naubat Ra(sic) Ahluwalia, it is stated in Para No. 13 as :
“Several decisions were cited before us but those falling within the following categories are to be distinguished :
(i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour ; say, during the pendency of an appeal filed by the unsuccessful tenant ;
(ii) cases in which the death of the decree-holder landlord was pleaded as a defence in execution proceedings ; and
(iii) cases in which, not the plaintiff but the defendant-tenant died during the pendency of the proceedings and the tenant’s heirs took the plea that the ejectment proceedings cannot be continued against them.”
(sic)In the present cases we are mainly concerned with the second category of cases viz, “cases in which the death of the decree-holder landlord was pleaded as a defence in execution proceedings”. Regarding this aspect, the Supreme Court has stated on page 2113 as :
“Cases of the second category are distinguishable because the decisions therein are, by and large, based on the principle that an executing. Court has no jurisdiction to go behind the decree. It must execute the decree as it finds it, save in exceptional cases as, for example, where the decree on the face of it is without jurisdiction.
In Vas Dev v. S. Sohan Singh, (1968) 4 Delhi LT 192 a case under Section 14(1)(e) of the Delhi Rent Control Act, the landlord obtained an order of eviction on the ground of personal requirement but he died before the order for eviction could be executed. His sons and daughters filed an execution application to which the tenants raised an objection that the order of eviction being personal to the landlord, was incapable of execution after his death. It was held by a Learned Single Judge that the provisions of Section 14(1)(e) have to be satisfied at the time of the passing of the order of eviction and that the executing Court had no right to go behind the decree in order to find out whether the requirement continues to be satisfied at the time of execution.”
This covers the ‘point in dispute’. The principle laid down by the Supreme Court as extracted above clearly shows that the executing Court after the eviction order has become final, has no jurisdiction to go behind the decree and has no jurisdiction to find out again as to whether the bona fide and reasonable requirement of the landlady still exists during the pendency of the execution proceedings. The solemnity attached to this principle is that the executing Court cannot sit in judgment over the order of eviction which has become final. The duty of the executing Court is to give effect to the order of eviction which has become final and execute it. It cannot decide again as to whether the order of eviction passed is correct or not.
9. In Shantilal Thakordas and Ors. v. Chimanlal Maganlal Telwala, , the Supreme Court has held on page 2360 as :
“In our considered opinion in face of the wordings of Section 14(1)(e) of the Delhi Act, the view expressed in Phool Rani’s case as stated above, is not correct. If the law permitted the eviction of the tenant for the requirement of the landlord “for occupation as a residence for himself and members of his family” then the requirement was both of the landlord and the members of bis family. On his death the right to sue did survive to the members of the family of the deceased landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be the requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family.”
Therefore, Shantilal Thakordas’s case6 goes a step forward than Phool Rani’s case, and lays down that if an eviction suit is filed by a landlord alleging that the premises is required both for himself and his family members, bis death does not put an end to the eviction petition. According to Shantilal Thakordas’s case, , the allegation made in the petition that the premises is also required for the use of the family members would entitle the members of the family to continue the eviction petition and show that it is required for their personal use.
10. In this case as already stated above, the eviction petition was filed by the landlady Pushpammal alleging that she bona fide and reasonably required the petition premises on the ground that her husband was going to retire shortly and he would get a pittance of pension and it was not sufficient for maintaining herself and her husband and that her husband wanted to run a cycle mart or shop in the petition premises and thus augment his income for the maintenance of herself and himself. Therefore, the eviction petition was filed not only for the use of herself but also for the use of her husband in order to enable him to run the business. This case of Pushpammal was accepted by the trial Court and eviction order was passed and the matter was carried to this Court by the tenant in Civil Revision Petition No. 1922/83. The tenant made a concession in the said revision in this Court as :
“On the basis of the submission made on behalf of the petitioner, on 12-8-1983 that he does not challenge the findings recorded by the Court below and confines the Civil Revision petition only to seek time to vacate the premises, notice was issued to the respondent-landlady to find out whether reasonable time could be granted to the petitioner for vacating the premises in question.”
The tenant who is the judgment-debtor in the execution proceedings, thought it fit during the pendency of the revision not to contest or challenge the findings recorded by the trial Court that the petition permises was bona fide and reasonably required by the landlady not only for the use of herself but also for the use of her husband who is a decree holder in the present case. Now it is rather too late in the day for him to contend that on account of the death of the landlady the eviction order became rather infructuous and incapable of execution. Hence, in view of the facts and circumstances of this case and in view of the clear principles of law laid down by the Supreme Court, it is not open to the tenant to resist the execution by urging that the order of eviction had become inexecutable on account of the death of the landlady.
11. The learned Author Sri Sabhahit has stated in Karnataka Rent Control Act, Third edition, 1983. on page 281 as:
“Note No. 14 : Whether Cause of Action enures to the benefit of heirs and assignees: (a) Heirs : The requirement of the landlord involves a personal element. Therefore in each case, it is a question of fact whether the cause of action survives for the benefit of his heirs. Normally the need of the heirs is considered the need of the landlord. Therefore, if there are indications in the application for eviction that it is for the benefit of the heirs also, the cause of action obviously survives. (See : Motilal v. Kailasli ; Institute v.Pandurang AIR 1947 Bom. 212).”
12. Then the learned Counsel Sri Srinath urged that the question as to whether such an order of eviction bad become inexecutable could be gone into in a proceeding under Section 47 C.P.C. He then referred me to a decision of this Court in Gulabi Hengsu v. Vasu Kottari, ILR 1986 KAR P 3559. It was held in the said case as :
“No doubt, the validity and the executability of the decree, can be set up in the course of the execution and the executing Court is entitled to go into the same, but that must be apparent on the face of the record such as the decree having been passed by a Court which has no inherent jurisdiction to make it. So also, an objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. But, 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 questions raised and decided at the trial or requires determination of the facts afresh to determine the question raised and where the jurisdictional facts are raised and decided at the trial or which could have been raised but have not been raised in the original proceeding, the executing Court in such a situation will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.”
The said case lays down the principle that if it is apparent on the face of the record that the decree is one passed by a Court having no inherent jurisdiction, then alone the executing Court can refuse to execute the decree. This case clearly suggests that the executing Court or the Court seized of an application under Section 47 C.P.C. cannot again sit in judgment on the order of eviction which has become final. Therefore, the said ruling, in my view, does not help Sri Srinath in the least.
13. The learned Counsel Sri Srinath, then referred me to Section 47(1) C.P.C. which reads as :
“All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(Underlining is mine)
The words “relating to the execution, discharge or satisfaction of the decree” used in Section 47(1) would only mean that the Court seized of the application under Section 47 C.P.C. can go only into these questions, namely, execution, discharge or satisfaction of the decree.
14. The learned Author Sri Mulla in his Code of Civil Procedure, 14th Edition, Volume 1, page 327 has stated as :
“That would also be the case where the challenge is that the decree was obtained by fraud. Such an objection cannot be tried by the executing Court. But in a recent decision the Supreme Court has stated that when the decree is passed by a Court which lacks the inherent jurisdiction to pass it, objection as to the validity of the decree can be raised in an execution proceeding if the objection appears on the face of the record. But if it does not so appear and requires examination of the questions raised and decided at a trial, or which could have but have not been raised, the executing Court will have no jurisdiction to entertain such an objection. Thus, where a decree for eviction of a tenant has been made by a Small Cause Court without any objection as to its jurisdiction having been raised and the question depends on the interpretation of the terms of the lease and the use to which the land was put at the date of the lease, it was held that these questions cannot be allowed to be raised in execution proceedings. The principle that an executing Court can go into question of lack of jurisdiction apparent on the record is well settled.”
15. In the A.I.R. Manual (Code of Civil Procedure) 4th Edition, Volume 3, on page 536 it is stated as :
“The executing Court cannot go behind the decree but must execute the decree as it stands.”
It is further stated on page 537 as :
“The executing Court cannot question the correctness or the validity of the decree except where the decree is a nullity.”
(Underlining is mine)
It is further stated on the same page as :
“The executing Court can go behind the decree only if there was a lack of inherent jurisdiction and not where there was an erroneous exercise of jurisdiction vested in the Court passing the decree.”
It is further stated on the same page as :
“The executing Court cannot alter the relief granted by the decree.”
It is further stated on page 538 as :
“Where an objection as to non-executability of the decree on the ground of its being a nullity is taken, the executing Court is not competent to go behind the decree if the decree on the face of it discloses some material on the basis of which the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction.”
16. The learned Author Sri Sarkar has stated in the Code of Civil Procedure, 7th Edition, Vol. 1, page 135 as :-
“Dispute as to execution of decree contemplates the existence of a valid decree. Where a decree is without jurisdiction or otherwise null and void it can be ignored by a person, his protest is not merely as to its execution but he impeaches the decree itself. Such a dispute is not within the purview of Section 47 at all.”
If the order of eviction is a valid one and is one passed by a competent Court and when the eviction is ordered on the ground of bona fide and reasonable requirement stated in the petition it is not open to the executing Court to sit in appeal and/or to decide that question again to find out if the bona fide and resonable requirement still continues to exist or not.
17. As already stated above, the eviction order was obtained by the landlady-Pushpammal on the ground that she bona fide and reasonably required the petition premises and that her husband was going to retire shortly and he would get a pittance of pension and it was not sufficient for maintaining herself and her husband and that her husband wanted to run a cycle mart or shop in the petition premises for augmenting his income for the maintenance of herself and himself. Therefore, the basis on which the cider of eviction was passed still continues to exist because the husband of the landlady was going to retire or has retired or her husband was going to get or is getting a pittance of pension which is not sufficient for his maintenance. Therefore, the basis that the shop premises is required by the husband to run the cycle shop, still continues to exist. The executing Court cannot sit in judgment on the order of eviction passed by a competent Court and which has become final once for all. The same Court cannot sit in judgment for finding out again as to whether the order of eviction is validly passed; and still continues to be executable or not.
18. The learned Author Sri Sarkar on page 134 has stated in a very eloquent manner as :
“The difficulties of a litigant in India begin when he has obtained a decree (Court of Wards v. Maharaja, 14 MIA 605, 612 : 17 WR 159)”.
The Supreme Court has also stated in Babu Lal v. Hazari Lal Koshori Lal and Ors., as :
“The present petition is a typical example of the desperate effort of the judgment-debtor to ward off the execution of the decree till the bailiff knocks at the door.”
This principle aptly comes into play in this case.
19. As already stated above it was wrong for the Court seized of the application under Section 47 C.P.C. to sit again in judgment about the correctness or the propriety of the eviction order passed in the eviction case. The question relating to the execution, discharge or satisfaction of the decree cannot be said to arise in the miscellaneous case filed under Section 47 C.P.C. at all. The requirement relating to the execution laid down by Section-47 C.P.C. does not mean that the Court seized of the application under Section 47 C.P.C. can again go into the propriety, correctness or otherwise of the eviction order passed by the competent Court and which has become final. Therefore, the petition under Section 47 C.P.C. is highly misconceived under the circumstances. Therefore, the Court below ought not to have ventured in the course of an enquiry of application under Section 47 C.P.C., to again determine the question as to whether the bona fide or reasonable requirement still continues to exist or not. Therefore, the order passed in Miscellaneous Case No, 10114/84 is unsustainable and is set aside. Hence, Civil Revision Petition No. 3852/85 is allowed. Misc. Case No. 10114/84 is dismissed.
20. So far as the execution case is concerned, it is not the case of the judgment-debtor that eviction order was passed by a Court without having any inherent jurisdiction. The order of eviction was passed by a competent Court constituted under the provisions of the Karnataka Rent Control Act and that has received the final stamp by the order passed by this Court in C.R.P. No. 1922/83. The executing Court cannot go behind that order of eviction and has no jurisdiction to find out as to whether the bona fide and reasonable requirement of the decree-holder-husband still continues to exist or not.
21. The Learned Counsel Sri Srinath drew ray attention to a decision of this Court in K. T. Thimme Gowda v. Thimme Gowda and other, and contended that the present decree-holder had not obtained and produced a succession certificate as required by Section 214(1) of the Succession Act. Section 214(1) of the Succession Act only speaks of the necessity of the succession certificate for the recovery of the debt. It applies only to a money claim. Therefore, the said decision will not be of any help to him in the present case.
22. In this case there is sample material on record and it is admitted by the Learned Counsel Sri Srinath that the landlady Pushpammal died intestate leaving behind only her husband and that she had no children, grand-children or great-grand-children. If it is so, then Section 15(1)(a) of the Hindu Succession Act would be an answer to his contention.
23. Section 15(1)(a) of the Hindu Succession Act reads as :
“The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16 :–
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.”
In this case landlady-Pushpammal and her husband admittedly have no sons and daughters and have no children of a pre-deceased son or daughter. Therefore, the only heir is the husband i.e. the present decree-holder. Therefore, he is the only competent person to execute the order of eviction passed in favour of his wife in this case.
24. Thus, in the result, the order passed by the Court below dismissing the execution Case No. 10338/85 is set aside. The Civil Revision Petition No. 67/86 is allowed. The Execution Case No, 10338/85 is restored to file and the Court below may proceed with the execution on merits. The judgment-debtor should pay the costs to the decree-holder in both cases in the Court below as well as in these two revisions and should bear his own through-out.
25. At this stage, Sri Srinath, learned Counsel for the respondent, submitted that his client desires to take the matter to the Supreme Court and the operation of this order may be suspended for a period of six weeks. When a party desires to approach the Supreme Court he should be given some time to approach it. Therefore, under these circumstances, the order passed by this Court is supended till 3rd of January, 1987.
26. The executing Court should proceed with the execution only after 3rd of January, 1987.