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Sadananda Saha And Ors. v. Union Of India .
Structured Summary of the Opinion
Factual and Procedural Background
The appellants (decree-holders) originally sued in the Munsif's Court at Chandpur alleging that 51 bundles of tobacco were booked from Shampur station to Chandpur station but only 14 bundles were delivered. The defendant named in that suit was the Governor-General in Council of India. The original suit was filed before August 1947 (i.e., before partition). While that suit was pending the partition of India occurred. A decree in the Chandpur suit was obtained on 18 May 1948, granting the defendant three months to pay the decretal amount.
When payment was not made, a notice under section 80 of the Code of Civil Procedure was served on the Union of India, and the appellants instituted Money Suit No. 10 of 1949 in the Sixth Subordinate Judge's Court, Alipore (filed 3 May 1949). An ex parte decree in that suit was passed on 22 August 1949. Execution proceedings were thereafter initiated. The Union of India filed an objection under section 47 of the Code of Civil Procedure in the execution proceedings. The Subordinate Judge (5th Court, Alipore) dismissed the section 47 application. On appeal the lower Appellate Court held that the court which passed Money Suit No.10 of 1949 had no jurisdiction to pass that decree and therefore the execution proceedings could not proceed. The present appeal challenges that appellate order.
Legal Issues Presented
- Against which Dominion (India or Pakistan) was the decree of the Munsif at Chandpur to be treated as having been passed (i.e., which Dominion was substituted for the Governor-General in Council by operation of the Indian Independence (Rights, Property and Liabilities) Order, 1947)?
- Whether a second decree obtained in India (Money Suit No. 10 of 1949) on the strength of the decree obtained from the Munsif at Chandpur was a decree passed without jurisdiction (and therefore a nullity), having regard to Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, Articles 8 and 12 of the Indian Independence (Rights, Property and Liabilities) Order, 1947, and sections 9 and 47 of the Code of Civil Procedure.
Arguments of the Parties
Appellants' Arguments (as presented in the opinion)
- The learned Advocate for the appellants (Mr. Ghose) contended that the view taken by the learned Additional District Judge (that the court which passed Money Suit No.10 of 1949 had no jurisdiction) was entirely wrong.
- He argued that Article 4(3) of the Indian Independence (Legal Proceedings) Order, 1947 means a decree obtained in proceedings pending on the appointed day must be given effect to as if it were a decree of a competent court in the Dominion where enforcement is sought and therefore enforcement should proceed by ordinary execution methods in that Dominion.
- Consequently, Mr. Ghose contended that the only statutory bar to instituting a fresh suit on such a decree would be section 47 of the Code of Civil Procedure, but that section 47, while a bar to institution of a suit, would not make a decree passed in contravention of it a nullity.
- He relied on authorities (including Hariravji Chiplunkar v. Shapurji Hormasji Shet and Gora Chand Haldar v. Prafulla Kumar Roy) to support the narrower proposition that an executing court can question jurisdiction of the decree-making court only in limited categories (territorial, pecuniary or personal jurisdiction).
Respondent / Other Party Arguments
The opinion does not contain a detailed account of the Union of India's specific legal arguments beyond the procedural steps they took (serving notice under section 80 and filing an objection under section 47 in execution). The appellate court's reasoning and disposition address the legal points raised by the appellants' submissions and the statutory instruments invoked.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Union of India v. Lokenath Saha (55 C.W.N. 195) | Held (per Roxburgh J.) that Article 8(1)(a) did not cover a contract for carriage where both origin and destination were now in Pakistan; such a liability was to be treated under Article 8(1)(b) (i.e., as liability of the Dominion of India). | The court cited this decision as one line of authority on the effect of Article 8(1)(a)/(b) but declined to resolve the Article 8 question for disposal of the appeal because it found a shorter ground for decision (relying on Article 4(3) and section 47/section 9 analysis). |
| Krishna Ranjan Basu Roy v. Union of India (59 C.W.N. 99) | Held (Das Gupta J. with Debabrata Mookerjee J.) that the purpose of a carriage contract to a destination now in Pakistan could reasonably be regarded as a purpose exclusively of Pakistan under Article 8(1)(a). | The court noted this contrary view as an alternative authority but, as with Lokenath Saha, declined to decide which view was correct because the appeal could be disposed of on a separate ground. |
| Chaman Lal Loma & Co. v. Dominion of India [A.I.R. 1954 Pun. 129] | East Punjab High Court decision supporting the view that contracts to destinations in Pakistan may fall within Article 8(1)(a). | Cited as an authority taking the same view as Krishna Ranjan Basu Roy; the court referenced it as part of the conflicting jurisprudence but did not resolve the conflict because it reached decision on other grounds. |
| Hariravji Chiplunkar v. Shapurji Hormasji Shet (I.L.R. 10 Bom. 461) | Privy Council held that section 11 of Act XXIII of 1861 (present section 47 of the Code of Civil Procedure) was a bar to the institution of the subsequent suit in the facts of that case. | The court observed that this authority established a bar to institution of a suit under the statutory provision but did not address whether a decree obtained in contravention of that bar is a nullity for want of jurisdiction; thus, it did not support the appellants' broader contention that a decree in contravention would not be a nullity. |
| Gora Chand Haldar v. Prafulla Kumar Roy (29 C.W.N. 948) | Contains the observation (per Walmsley J.) that an executing court may refuse to execute a decree made by a court which apparently had no jurisdiction in respect of pecuniary, territorial or personal jurisdiction — construed as a limited category in which jurisdiction may be questioned by executing courts. | The court considered this observation but held it must be read in light of its facts; it rejected the submission that the executing court's power to question jurisdiction is confined rigidly to those three categories, and therefore did not accept the appellants' reliance on this decision as decisive. |
Court's Reasoning and Analysis
The court proceeded by identifying two threshold questions and then selecting a shorter ground of decision so as to avoid deciding a contested point unnecessarily.
First, the court framed the question whether the decree of the Chandpur court was to be treated as a decree against the Dominion of India or the Dominion of Pakistan (i.e., which Dominion was substituted for the Governor-General in Council under the Indian Independence (Rights, Property and Liabilities) Order, 1947 — Article 8(1)(a) and (b)). The court reviewed competing authorities on that point (Union of India v. Lokenath Saha taking one view; Krishna Ranjan Basu Roy and Chaman Lal Loma taking the opposite view).
The court held that it was unnecessary to decide that Article 8 point because Article 4 (of the Indian Independence (Legal Proceedings) Order, 1947) produced the same practical consequence either way. The court analyzed Article 4(1)–(3), with emphasis on sub-clause (3), which provides that effect shall be given within the territories of either Dominion to any judgment, decree, order or sentence of a court in proceedings pending on the appointed day as if it had been passed by a court of competent jurisdiction within that Dominion.
From Article 4(3) the court reasoned that a decree passed in proceedings pending on the appointed day in a court in Bengal (or the relevant provinces) must be treated for enforcement purposes in either Dominion as a decree of a competent court of that Dominion. Consequently, whether the Chandpur decree is treated as against India or Pakistan, Article 4(3) requires that its effect be given in India as if it were a decree of a competent Indian court. Thus the court did not have to resolve the Article 8 conflict for the present appeal.
Turning to the second question — whether the second decree obtained by the appellants in Alipore was without jurisdiction — the court placed reliance on section 9 of the Code of Civil Procedure (courts have jurisdiction to try suits of civil nature except those expressly or impliedly barred) and section 47 (which provides that questions relating to execution, discharge or satisfaction of a decree shall be determined by the court executing the decree and not by a separate suit).
The court accepted that sub-clause (3) of Article 4 would require an ordinarily obtained decree to be given effect by execution proceedings in the Dominion where enforcement is sought, and it gave Mr. Ghose the concession that the matters agitated in the second suit related to execution/discharge/satisfaction of the earlier decree. Nevertheless, the court held that Article 4(3) has an independent and wider operation: it bars the institution of a fresh suit in respect of judgments, decrees or orders passed in proceedings pending before a particular court on the appointed day. The scheme of the Order, the court explained, is to prevent multiplicity of suits in different Dominions concerning matters already the subject-matter of proceedings pending on the appointed day.
Consequently, whether by operation of Article 4(3) itself or by virtue of section 47 read with section 9, cognizance of a fresh suit based on such a decree is barred. A court entertaining such a suit would, the court concluded, be acting without jurisdiction. The court therefore found that the second decree (Money Suit No.10 of 1949) obtained on the basis of the Chandpur decree was a decree obtained without jurisdiction and thus a nullity.
The court then reviewed the authorities relied upon by Mr. Ghose. Hariravji Chiplunkar was said to establish the statutory bar under the predecessor provision to section 47 but did not decide whether a decree obtained in contravention was a nullity. Gora Chand Haldar was considered and its dictum (that an executing court may question jurisdiction in certain narrow cases) was read as directed to the facts of that case; the court refused to accept the appellants' submission that the executing court's power to question jurisdiction is confined strictly to those three categories, instead emphasizing the distinction between absolute lack of jurisdiction and erroneous exercise of jurisdiction.
Holding and Implications
Holding: The court dismissed the appeal. The panel held that the decree obtained by the appellants in Money Suit No. 10 of 1949 was a decree passed without jurisdiction and a nullity because the suit on which it was founded was barred by Article 4(3) of the Indian Independence (Legal Proceedings) Order, 1947 (and, in any event, by the combined operation of section 47 and section 9 of the Code of Civil Procedure). The court therefore upheld the view of the learned Additional District Judge that the Alipore court had no jurisdiction to pass the second decree.
DISMISSED
Implications: The direct consequences are (1) the appeal is dismissed, (2) the second decree (Money Suit No.10 of 1949) is treated as a nullity for want of jurisdiction and cannot be executed, and (3) there is no order as to costs. The opinion does not purport to settle the competing views on Article 8(1)(a) v. Article 8(1)(b) — the court expressly avoided deciding that question — and thus does not announce a broader resolution of that statutory debate beyond the holding that Article 4(3) (and sections 9 and 47) bar the institution of a fresh suit in the circumstances described. In other words, the decision determines the parties' rights in this litigation and affirms the execution-stage bar, but the court did not claim to lay down a definitive rule resolving the Article 8 conflict between the cited authorities.
Judges: S. R. Das Gupta, J. (delivering the principal opinion) and Mallick, J. (agreeing). The opinion is signed "A.K.D-G." in the record.
The judgment of the Court was as follows:
S.R Das Gupta, J.:— This is an appeal against an order passed under section 47 of the Code of Civil Procedure. The decree-holders are the appellants before us. By the said order it was held that the decree which was passed was without jurisdiction.
1. The facts leading up to this appeal are as follows: Originally a suit was brought in the court of the Munsif at Chandpur by the Appellants on the allegation that out of 51 bundles of tobacco booked from Shampur station on the A.B Railway to Chandpur Station on the same Railway only 14 bundles were delivered. The claim was made against the then Governor-General in Council of India. The said suit was filed before August, 1947, before the date on which partition of India took place. While the said suit was pending the partition of India was effected and thereafter, a decree was obtained from the said court by the appellants on the 18th May, 1948. By the said decree the defendant was given three months' time to pay all the decretal dues. The payment of the decretal amount not having been made a notice under section 80 of the Code of Civil Procedure was served on the Union of India and thereafter, a suit being Money Suit No. 10 of 1949 was brought in the court of the Sixth Subordinate Judge, Alipore. The said suit was filed on the 3rd of May, 1949, and an ex parte decree was passed in the said suit on the 22nd August, 1949. I should have mentioned that the decree in question was obtained on the judgment which had been delivered by the First court of the Munsif at Chandpur in the previous suit. Thereafter an execution proceeding was started for realisation of the said decretal amount. An objection under, section 47 of the Code of Civil Procedure was filed by the Union of India in the said execution proceedings. The application under section 47 of the Code was dismissed by the Subordinate Judge, 5th Court, Alipore. There was an appeal against the said order and the lower Appellate Court held that the court which passed the decree in Money Suit No. 10 of 1949 had not jurisdiction to pass the same and therefore the execution proceedings cannot proceed and be allowed the application made under section 47 of the Code of Civil Procedure. It is against that order that the present appeal has been preferred.
2. The learned Advocate for the appellants contended before us that the view taken by the learned Additional District Judge was entirely wrong. In order to determine whether or not the view taken by the lower court is correct it would be necessary to refer to certain provisions of the Indian Independence (Legal Proceedings) Order, 1947, and of the Indian Independence (Rights, Property and Liabilities) Order, 1947. The relevant article of the Indian Independence (Legal Proceedings) Order, 1947, is Article 4 which runs as follows:—
“4 Notwithstanding the creation of certain new Provinces and the transfer of certain territories from the Province of Assam to the Province of East Bengal by the Indian Independence Act, 1947,—
(1) all proceedings pending immediately before the appointed day in any civil or criminal court (other than a High Court) in the province of Bengal, the Punjab or Assam shall be continued in that court as if the said Act had not been passed, and that court shall continue to have for the purposes of the said proceedings all the jurisdiction and powers which it had immediately before the appointed, day;
(2) any appeal or application for revision in respect of any proceedings so pending in any such court shall lie in the court which would have appellate, or as the case may be, revisional, jurisdiction over that if the proceedings were instituted in that court after the appointed day; and
(3) effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such court in the said proceedings, as if it had been passed by a court of competent jurisdiction within that Dominion.”
3. The material provisions of the Indian Independence (Rights, Property and Liabilities) Order, 1947, are contained in Articles 8 and 12 of the said order. They are as follows:—
“8(1) Any contract made on behalf of the Governor-General in Council before the appointed day, shall as from that day,
(a) If the contract is for purposes which as from that day are exclusively purposes of the Dominion of Pakistan, be deemed to have been made on behalf of the Dominion of Pakistan instead of the Governor-General in Council; and
(b) in any other case, be deemed to have been made on behalf of the Dominion of India instead of the Governor-General in Council.”
4. The rest of the provisions of the said Article are not material for our present purpose.
“12(1) Where immediately before the appointed day the Governor-General in Council is a party to any legal proceedings with respect to any property, rights or liabilities transferred by this Order, the Dominion which succeeds to the property, rights or liabilities in accordance with the provisions of this Order shall be deemed to be substituted for the Governor-General in Council as a party to those proceedings, and the proceedings may continue accordingly.”
5. We are not concerned with the rest of the provisions of the said Article.
6. The first question which arises for our decision is against whom this decree of the Chandpur court was passed. The decree apparently was passed against the Governor-General in Council of India but at the time the said decree was passed the partition of India had been effected in So the question is against whom was the said decree passed, or in other words, which of the Dominions shall be deemed to have been substituted for the Governor-General in Council as a party in the said suit? The answer to that question would again depend on whether or not the liability in respect of the contract on which the plaintiffs filed the said suit was a liability of the Dominion of Pakistan or of the Dominion of India, that is to say, the view we take as to the effect of Article 8(1) (a) and (b) of the Indian Independence (Rights, Property and Liabilities) Order, 1947. It is not disputed before us that the contract with the then Governor-General in Council was for the carriage of 51 bundles of tobacco booked from Shampur Station to Chandpur Station. Both these stations are now within the Dominion of Pakistan. That being so, would the contract in question be a contract for the purposes of the Dominion of Pakistan or for the purposes of the Dominion of India? This very question arising out of similar set of circumstances came up for consideration before Mr. Justice Roxburgh in the case of Union of India v. Lokenath Saha, (1) (55 C.W.N 195), and his Lordship held that Article 8(1) (a) of the Indian Independence (Rights, Property and Liabilities) Order, 1947, did; not cover such a contract and the liability on the said contract must be a liability as provided in the residual provisions of Article 8(1) (b), namely the liability of the Dominion of India. The reason for this view taken by his Lordship was that it could not be said that the contract for carriage of goods in March, 1947, before the Dominion, of Pakistan was ever thought of, could be held as from the “appointed day” to be one that is for the purposes which from that day are exclusively the purposes of the Dominion of Pakistan. In a subsequent case reported in (2) (59 C.W.N 99) (Krishna Ranjan Basu Roy v. Union of India), Mr. Justice Das Gupta sitting with Mr. Justice Debabrata Mookerjee took a contrary view. Their Lordships did not accept the reasoning given in the case decided by Mr. Justice Roxburgh and held that the purpose of the contract was the carriage of the goods and where the destination was some point in Pakistan it would seem reasonable to hold that the purpose was the purpose of the Dominion of Pakistan. The view taken by Mr. Justice Das Gupta and Mr. Justice Debabrata Mookerjee, was also the view taken in a decision of the East Punjab High Court in the case of Chaman Lal Loma & Co. v. Dominion of India, (3) [A.I.R 1954 Pun. 129].
7. The question, therefore, is which of these decisions should be accepted as correct. Had it been necessary for us to go into the question for the purpose of disposing of this appeal we would have certainly done so, but in our opinion, this appeal can be disposed of on a much shorter ground and it would not be necessary for us to go into this question at all.
8. The position is that if it is taken to be a decree passed against the Dominion of India, then under the provisions of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, no decree on such a decree could be passed. If again the decree in question be taken to be a decree passed against the Dominion of Pakistan then also in view of the said provisions no fresh decree could be obtained by the appellants. Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, lays down in the clearest possible terms that notwithstanding the creation of the new provinces all proceedings pending immediately before the appointed day in any civil or criminal Court in the Province of Bengal, Punjab or Assam shall be continued in that Court as if the said Act had not been passed. Sub-clause (3) lays down that the effect shall be given within the territories of either of the two Dominions to any judgment, decree, order or sentence of any such Court in the said proceedings, as if it had been passed by a Court of competent jurisdiction within that Dominion. Reading the said two sub-clauses of the said Article it seems to be clear that proceedings which were pending on the appointed day in any Court in the Province of Pakistan will have to be continued in the same court and any order or decree passed in the said proceedings shall be given effect to in the other Dominion as if it had been passed by a Court of competent jurisdiction within the said Dominion. In other words, the decree or order in question so passed must be treated to be a decree or order of the other Dominion in which it is sought to be enforced. That being the position, this decree, if it is a decree passed against the Dominion of Pakistan, must also be given effect to in the Dominion of India as if it had been passed by a Court of competent jurisdiction within the Dominion of India. If, on the other hand, it be a decree passed against the Dominion of India, then there is no question that it is to be enforced within the Dominion of India as a decree passed by a Court of competent jurisdiction of this Dominion. So in either cause the decree in question can be enforced in the Dominion of India as a decree passed by a Court of competent jurisdiction within that Dominion. In that view of the matter it becomes, in our opinion, unnecessary to decide the question mentioned above.
9. The next question which arises, on the view we have taken so far, is whether or not the second decree which had been obtained by the appellants on the strength of the decree passed by the court of the Munsif at Chandpur was a decree passed without jurisdiction. As I have already indicated, the second decree was passed on the strength of the decree which was obtained from the court of the Munsif at Chandpur. If it is a decree, which either it is in fact or is to be treated as such, passed by a competent court of the Dominion of India, then in our opinion no second decree can be obtained on the strength of the said decree and the decree which had been obtained is a nullity. Section 9 of the Code of Civil Procedure in our opinion makes this position quite clear. That section provides that the courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. In this case cognizance of such a suit is in our opinion barred by the provisions of sub-clause (3) of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947. That sub-section in effect says that the decree shall be given effect to as if it were a decree passed by a court of competent jurisdiction of the Dominion in which it is sought to be enforced: in other words, the said sub-clause by implication prohibits the institution of a fresh suit on the decree which had been obtained in the proceedings mentioned in the said Article. Mr. Ghose appearing on behalf of the appellants contends before us that if the result of the said sub-clause is that the decree which is obtained in the proceedings mentioned in the said Order will have to be enforced in the manner in which a decree in fact obtained in a Court within the jurisdiction of the Dominion of India has to be given effect to execution proceedings have to be taken in order to give effect to the said decree. Then the only bar to the institution of a fresh suit on the said decree would be the bar imposed by section 47 of the Code of Civil Procedure. But Mr. Ghose's contention is that section 47 of the Code of Civil Procedure although a bar to the institution of a suit, would not make a decree passed in contravention thereof a nullity. In support of the said proposition Mr. Ghose cited some cases before us with which I shall presently deal. But I should mention at this stage that none of these cases cited by Mr. Ghose supports the contention which he raised before us namely that a decree passed in contravention of the provisions of section 47 of the Code of Civil Procedure is not a decree passed without jurisdiction or a nullity. On principle I see no reason why a decree passed in a suit filed in contravention of the provisions of section 47 of the Code of Civil Procedure would not be a decree passed without jurisdiction and a nullity. Section 9 of the Code of Civil Procedure clearly states that the Courts have ‘jurisdiction’ to try suits excepting those suits cognizance of which have been either expressly or impliedly barred. In our opinions cognizance of a suit which falls within the purview of section 47 of the Code of Civil Procedure has been expressly barred by the said section. Section 47 says that 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. Thus, the said section in clear terms prohibits the institution of a suit in respect of questions arising between the parties to the suit in which a decree was passed or their representatives relating to the execution, discharge or satisfaction of the decree. I am for the moment conceding that the question which was raised in the subsequent suit was a question relating to the execution, discharge or satisfaction of the decree. Even if that be the position, I see no reason why Section 9 of the Code of Civil Procedure would not cover a case which comes within section 47 of the Code of Civil Procedure. I have up till now proceeded on the basis that the matters agitated in the second suit are matters which are covered by section 47 of the Code of Civil Procedure and on that the effect of sub-clause (3) of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, is that the holder of a decree referred to in the said Article will have to follow the ordinary methods of execution. But, in my opinion, sub-clause (3) of Article 4 has a wider effect than what is contended for by Mr. Ghose. It seems to us that sub-clause (3) of Article 4, independently of section 47 of the Code of Civil Procedure, bars the institution of a fresh suit in respect of judgments, decrees or orders passed in proceedings which had been pending before a particular Court on the ‘appointed day’ as referred to in the said Article. The whole scheme of the said Order is that the proceedings which are pending before a particular Court on the ‘appointed day’ have to be continued in that Court and if any decree or order is passed by that Court, that decree or order must be final or binding on both the Dominions: in other words, the object of the said Article is clearly to prevent multiplicity of suits in different Dominions over the same matter which has been the subject-matter of proceedings pending in any particular Dominion on the ‘appointed day’. We are of opinion that independently of the provisions of section 47 of the Code of Civil Procedure, sub-clause (3) of Article 4 of the Indian Independence (Legal Proceedings) Order, 1947, is a bar to the institution of a suit in respect of all matters which had already been the subject-matter of a decree passed in a suit pending on the ‘appointed day’. That being so, Section 9 of the Code of Civil Procedure is attracted to the said provisions and if a Court entertains such a suit filed on the basis of such a decree or order the Court would be acting without jurisdiction.
10. I shall now deal with the cases cited by Mr. Ghose. In the case of Hariravji Chiplunkar v. Shapurji Hormasji Shet, (4) (I.L.R 10 Bom. 461) relied on by Mr. Ghose the facts were as follows:— A mortgage-decree for redemption had originally been passed against two mortgagors. One of the mortgagors had paid up his dues and redeemed the mortgage. Thereafter the second mortgagor filed a fresh suit for redemption on the view that the decree in question was really a fresh mortgage. The learned Subordinate Judge negatived that contention and held that the suit was barred in view of the provisions of section 11 of Act XXIII of 1861 (present section 47 of the Code of Civil Procedure) and dismissed the suit. Against the said decision there was an appeal to the High Court and the High Court took the same view. The matter was taken to the Privy Council and the Privy Council also dismissed the appeal. I do not see how this case helps Mr. Ghose in his contention. Their Lordships did not at all consider the question of jurisdiction. All that their Lordships held was that section 11 of Act XXIII of 1861, was a bar to the institution of the suit. The question as to whether or not if any decree had been passed in contravention of the said section the same would have been a nullity having been passed without jurisdiction, did not arise for their Lordships' consideration. The other case on which reliance was placed by Mr. Ghose in his argument before us was the case of Gora Chand Haldar v. Prafulla Kumar Roy, 29 C.W.N 948. Mr. Ghose relied upon this case in support of his contention, namely, that even if the decree in this case had been passed without jurisdiction, it is not such an absence of jurisdiction as can be challenged by the executing court: in other words, Mr. Ghose's contention was that the executing court can question the jurisdiction of the Court which passed the decree only in limited cases, that is to say, cases where there is want of jurisdiction either territorial, pecuniary or personal. It is in support of the said proposition that he cited the said case of Gora Chand Haldar v. Prafulla Kumar Roy, 29 C.W.N 948. Mr. Ghose relied upon the observations of Mr. Justice Walmsley made in the said case which is as follows:
“Where the decree presented for execution was made by a court which apparently had not jurisdiction whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree the executing court is entitled to refuse to execute it on the ground that it was made without jurisdiction; within these narrow limits I think that the executing Court is authorised to question the validity of a decree.”
11. In my opinion the observations on which Mr. Ghose relied in support of his contention must be read with reference to the facts of the case.
12. It does not seem to us that Mr. Justice Walmsley wanted to lay down an absolutely hard and fast rule, namely, that it is within those three cases and no other that the Court executing the decree can question the jurisdiction of the Court which passed the said decree. The emphasis as it appears to us was more on the distinction between the absolute lack of jurisdiction and exercise of jurisdiction erroneously. We do not think that on the authority of this case we can accept Mr. Ghose's present contention.
13. In our opinion, therefore, the view taken by the learned Additional District Judge was correct. The Court which passed the second decree on the basis of the decree which had already been obtained from the Munsif's Court, at Chandpur, acted without jurisdiction. It is not a mere irregularity as contended by Mr. Ghose before us.
14. In the result, therefore, this appeal must be dismissed and we make an order accordingly. There will be no order as to costs.
Mallick, J.:— I agree.
A.K.D-G.
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