1. This is an application in execution of part of a decree transmitted for Rs. 30 lacs for execution against the judgment-debtors Nos. 1 to 6. Execution is sought against the judgment debtor Nos. 1 to 6 that is to say M/s. Ramjidas Shriram, a partnership firm. Mr. Shrawan Kumar Agarwal in his individual capacity and as Karta of H. U. F. business of Shrawan Kumar Agarwal and Brothers, Mr. Onkarnath Agarwal in his individual capacity and as Karta of H. U. F. business of Onkarnath Agarwal and Brothers. Mr. Asok Kumar Agarwal son of Mr. Premnath, Smt. Sushila Wati. wife of Ramnath. Mr. Kedarnath Agarwal. son of late Balaprasad all of 46, Upper Chitpur Road, Calcutta.
2. The execution is sought by attachment and sale of movable and immovable properties of the judgment-debtors Nos. 1 to 6. The mode in which the execution is sought is stated in Column 10 of the tabular statement filed herein.
3. The said mode is the attachment and sale of the right, title and interest of judgment-debtors Nos. 1 to in 42, 43 and 46, Upper Chitpur Road now known as No. 216, 218 and 222. Rabindra Sarani. the right title and interest of the defendants Nos. 3 and 6 in properties No. 36, 37, 38. 40 Upper Chitpur Road now re-numbered as premises No. 212. Rabindra Sarani, Calcutta as also also 13A. Bagbazar Street. Calcutta within the jurisdiction of this Court. The judgment-creditor also wants to have Plots Nos. 1189, 1190, Bakultalta, Baltikuri. Howrah and superstructure built over there also to be sold. But the said property cannot be attached and sold in execution of the decree by this Court. The shares of the judgment-debtors in different Joint Stock Companies and partnership firms details of which are given is Schedule 2 are also sought to be attached and sold in execution. The said shares in Joint Stock Companies and partnership firms have been set out in Annexure 2 to the tabular statement. Besides the same, various bank accounts of the judgment-debtors have been mentioned and other movable properties and household goods belonging to the judgment-debtors have been set out in Annexure 3 to the tabular statement for being attached and sold in execution of the decree. The decree sought to be executed is dated 17th April, 1974 passed by the High Court at Delhi in Suit No. 472 of 1972.
4. The following defence has been raised to the execution of the decree by Kedarnath Agarwal. the respondent No. 6.
(1) The said Suit in Delhi could not be validly instituted under Order 37 of the Code of Civil Procedure as the same was not based on any negotiable instrument or hundi.
(2) None of the said alleged hundies was duly stamped.
(3) Although, the said Suit was purported to have been filed under Order 37, the same was really based on original consideration and thus no decree could have been passed.
(4) None of the said hundies was payable to or assigned in favour of the plaintiff.
(5) The learned Judge of the Delhi High Court had no jurisdiction to Pass the said decree without any evidence.
(6) No part of the cause of action as alleged in the plaint arose within the jurisdiction of the Delhi High Court.
(7) The defendants did not reside or carry on business within the jurisdiction of the Delhi High Court.
(8) The plaintiff has started execution proceedings of the said decree in the Delhi High Court being the Execution Case No. 39 of 1974. The said execution case is still pending at Delhi Court.
(9) The plaintiff decree-holder is Purported to split up its decretal claim into two parts -- one for Rs. 15 lacs and another for Rs. 30 lacs and simultaneously executing the said decree partly in the High Court at Delhi and partly in this Hon'ble Court.
(10) The two Plots of land Nos. 1189 and 1190 at Bakultalla. Baltikuri, Howrah are situated outside the jurisdiction of this Court. The said two properties are situated within the jurisdiction of the District Court at Howrah.
(11) In 1943, Kedarnath had been taken into adoption by his maternal uncle, grandfather of late Balaprosad of Delhi and ceased to have any interest in the properties of his natural father. He has no interest in premises Nos. 42. 43 and 46, Upper Chitpur Road, now Nos. 216, 218 and 222. Rabindra Sarani, Calcutta, save and except as a tenant in respect of a portion of premises No. 46, Upper Chitpur Road.
(12) Kedarnath's share in the 212, Rabindra Sarani. Calcutta is l/12th and l/18th which he acquired by purchase in 1960 and 1965 respectively. His total undivided share thus in the said 212, Rabindra Sarani is 5/36, Kedarnath has no interest in premises No. 13A, Bag-bazar Street. Calcutta or the Bakultalla properties at Howrah.
(13) Kedarnath denies the particulars of moveable properties as alleged to be lying at No. 46, Upper Chitpur Road. Calcutta.
5. The plaintiff's suit is based on an agency agreement between the plaintiff and the defendant No. 1 in which the defendant No. 1 was selling agent of the plaintiff in the eastern territory of India and was to receive a commission of 1/2% in respect of the yarn and at the rate of 1.56% for all the items of clothes except tapestry for which the commission was at the rate of 4.69%. The expenses for everyday cartage and godown rent etc. incurred by the defendant No. 1 were to be paid by the plaintiff to the defendant No. 1. Upon account of the said agency agreement being taken, nothing will be found due to the plaintiff. But the plaintiff managed to obtain the decree in the Delhi High Court by suppression of all material facts. The main burden of the defence was that the decree obtained at the Delhi High Court is null and void and cannot be executed. The respondent No. 2. Shrawan Kumar Agarwal in his affidavit-in-opposition to the tabular statement states as follows :
No writ of summons in the suit was served on the respondent No. 2 M/s. Shrawan Kumar Agarwal and Brothers. The said decree thus is void and unenforceable against the respondent No. 2, Shrawan Kumar Agarwal and Brothers, the H. U. F. was not a partner of the judgment-debtor No. 1 Ramjidas Shriram, Shrawan Kumar Agarwal himself was a partner of Ramjidas Shriram. The said decree was passed without jurisdiction and is a nullity for the following reasons :
(1) The said suit was not and could not be validly instituted under Order 37 of the Code of Civil Procedure. The said suit is not based on any negotiable instrument or hundi.
(2) None of the alleged hundies have been duly stamped.
(3) The suit No. 472 of 1972 was a suit based on original consideration and was not maintainable under Order 37 of C. P. C.
(4) The plaintiff is not payee of any of the alleged hundies and thus no decree could have been passed in favour of the plaintiff.
(5) None of the said alleged hundies were assigned or endorsed in favour of the plaintiff.
(6) The suit not having been validly instituted under Order 37 of the Code of Civil Procedure, the Delhi High Court had no jurisdiction to treat the same as a suit under Order 37 of C. P. C. and Pass the decree therein.
(7) No decree could be passed without any evidence in the said suit in violation of the principles of natural justice.
(8) No part of the cause of action in the said suit arose within the jurisdiction of the Delhi High Court,
(9) The defendants in the said suit resided outside the jurisdiction of the Delhi High Court.
(10) Drawing of hundies, as has been alleged, within the jurisdiction of the said court, is not a part of the cause of action.
(11) The plaintiff has already proceeded with execution Proceeding of part of the said decree in the Delhi High Court as such, this execution proceeding is void.
(12) His personal share will be l/54th in the said three 206, 218 and 222. Rabindra Sarani and 13A, Bagbazar Street, Calcutta.
6. In fact, the main plea of Shri Shrawan Kumar Agarwal is that he in his personal capacity is a partner of the judgment debtor defendant No. 1 and the decree of the Delhi suit is a nullity. In the affidavit of respondent No. 3, it has been pleaded that the decree in the Delhi suit is a nullity and not executable.
7. The suit at Delhi was filed by the decree-holder Delhi Cloth Mills Ltd. against the defendant No. 1 Ramjidas Shriram for recovery of Rs. 36,07,167,21 p. under Order 37 of the Code of Civil Procedure on the basis of 118 hundies drawn on the defendant No. 1 and accepted by it at Calcutta. No writ of summons was served upon the respondent No, 3 in his individual capacity or as the Karta of H. U. F. of Onkarnath Agarwal and Brothers at 46, Chitpur Road, Calcutta. Thus the Court had no jurisdiction to pass any decree against him in his individual capacity or as a Karta of another H. U. F. He denies that he has l/6th share in premises Nos. 36. 37 and 38 to 40. Upper Chitpur Road or that any share in No. 13A, Bag-bazar Street, Calcutta. It appears from the facts of, the case that the suit in which the decree was passed was instituted on 27th Oct. 1972 in the High Court at Delhi under Order 37 of the Code of Civil Procedure for a decree for Rs. 36,07,164.21 p. with interest and cost. On the 25th May, 1973, the judgment-debtor No. 1 made an application under Order 37. Rule 3 of the Civil Procedure Code in the High Court at Delhi for leave to defend the suit filed by the decree-holder. The said application was dismissed by the Delhi High Court. On the 14th Oct. 1973, the judgment-debtor filed a suit in the High Court at Delhi being the suit No. 454 of 1973 for a declaration that the hundies sued upon be attached, declared void, delivered up and cancelled. On the 7th Sept. 1977 an order was made by the Supreme Court of India on the application of the judgment-debtors herein for special leave against the order passed by the High Court at Delhi 'whereby the judgment debtors were granted leave to defend the suit filed by the decree-holder herein on condition that the judgment-debtors would furnish a bank guarantee to the extent of Rs. 10 lacs within 3 months from the date of the said order and also give security for a further sum of Rs. 10 lacs within a further period of 3 months from the date of furnishing the bank guarantee. On the 4th Mar. 1974. the judgment-debtors applied to the Supreme Court of India for modification of order dated 7th Dec. 1973. But the application was dismissed by the Supreme Court. On the 6th Mar. 1974 time to furnish bank guarantee under the order of the Supreme Court expired and no bank guarantee was furnished by the judgment-debtors. On the 13th Mar. 1974, the judgment-debtors made an application under Section 151 of the Code of Civil Procedure in the suit in the Delhi High Court. The said application was dismissed. On the 17th Apr. 1974 the decree under execution was passed by the High Court at Delhi for Rs. 36,07,164.21 P. with interest at the rate of 12% per annum on the principal sum of Rs. 30,28,873.50 p. up to the date of the decree and thereafter at the rate of 6% per annum until realisation. By an order made on 16th Sept. 1975, the High Court at Delhi ordered simultaneously execution of the decree at Delhi and at Calcutta. But the execution at Calcutta was limited to a sum of Rs. 30 lacs. Even after the said order dated 16th Sept. 1975. the judgment-Debtors went up in appeal against the said order and obtained an interim stay of execution which was finally discharged by an order dated 5th May, 1976. The interest of Onkarnath and Kedarnath in 212, Rabindra Sarani is 7/36 jointly. The judgment-debtors have throughout challenged the decree even up to the Supreme Court of India.
8. Mr. S.K. Kapoor appearing with Mr. Jayanta Mitter submitted that the decree is executable against the shares of the coparceners of H. U. F. business of M/s. Onkar Nath Agarwal and Bros. M/s. Shrawan Kumar Agarwal and Bros, as the Kartas of the joint Hindu families which carried on the said businesses were partners of the defendant No. 1. Mr. Kapoor relied on the case of Firm Bhagatram Mohanlal v. Commr. of Excess Profits Tax, Nagpur reported in : 29ITR521(SC) wherein the Supreme Court has held that a decree against a firm in which the Karta of H. U. F. is a partner with stranger is executable against all the coparceners. Mr. Kapoor then relied on the case of Premlata v. Laxman Prasad reported in : 1SCR364 wherein it was held that simultaneous execution at different States of the same decree can be allowed in exceptional cases. Mr. Kapoor further relied on the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman reported in : 1SCR66 for the proposition that the executing court cannot go behind the decree even if the decree is erroneous in law or on facts except when the decree is made by a court which has no inherent jurisdiction to make it. Objection as to the validity cannot be raised in execution. In the instant case, according to the learned counsel, on the face of the decree, the decree is quite valid and proper. So no objection can be raised as to the validity of the decree. The learned counsel then relied on the case of Gurudas Adhya v. Jnanendra Narayan Bagchi reported in AIR 1935 Cal 268 wherein in construing S. 39 of the Civil Procedure Code, a Division Bench of the Calcutta High Court held that simultaneous execution is permitted. A court has jurisdiction to execute its decree and at the same time send it to another court to execute it simultaneously. The counsel then relied on the case of Hiralal Patni v. Kadarnath reported in : 2SCR747 wherein it has been laid down that the validity of a decree can be challenged in excution proceeding only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the cafe because the said matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or the decree passed or such further ground which can have the effect of rendering the court entirely lacking any jurisdiction in respect of the subject matter of the suit or over the parties to it. The counsel submitted that this case was not such a case. Delhi High Court had certainly jurisdiction to entertain and try the suit and thus the decree passed by the Delhi High Court is not a nullity and cannot be challenged in execution.
9. The respondents relied on the case of Kiran Singh v. Chaman Paswan reported in : 1SCR117 wherein it was laid down that it is the fundamental principle that a decree passed by court without jurisdiction is a nullity and that its validity can be challenged whenever and wherever it is sought to be enforced or relied on even at the stage of execution and even in collateral proceeding. A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the case strikes at the very authority of the court to pass any decree and such a decree cannot be cured even bv consent of parties. It appears to me that is not the case here in the instant matter. In the instant case the Delhi High Court certainly had jurisdiction to try and entertain the suit and all the defendants submitted to the jurisdiction of the Delhi Court. The decree in the instant case cannot be said to be a nullity. The other points raised in defence to the execution are barred by res judicata or principles analogous thereto. I shall now shortly deal with the cases cited by the either side. The case relied on is the case of Jagjivan Mavji Vithlani v. Ranchhoddas Meghji. : 1SCR503 which laid down that in order to be liable on a promissory note the drawee must accept it. The next case cited was the case of Virappa Andandaneppa Manvi v. Mahadevappa Basappa Katti reported in AIR 1934 Bom 356 where a Division Bench of the Bombay High Court held that the holder of a promissory note cannot recover on it unless it is endorsed in his favour. The next case cited is the case of Bachaprasad v. Janki Rai reported in : AIR1957Pat380 (FB) wherein a Full Bench of Patna High Court decided that no person could sue unless he was a named payee or was entitled as endorsee of a negotiable instrument. The next case cited was the case of Milkhiram (India) Private Ltd, v. Chamanlal Bros, reported in : AIR1965SC1698 wherein it was held that where promissory notes executed bv defendant in favour of plaintiff for advances made from time to time, suit on promissory notes was independent of the agreement and fell under Order 37. Rule 2. Thus in the instant case, hundies accepted by the defendant No. 1 for the sale proceeds of the goods of the decree-holder could be sued upon under Order 37, of C.P.C. The next case relied on was Mandalsa Devi v. M. Ramnarain Private Ltd. reported in : 3SCR421 , which deals with Sections 86, 87B, Order 30, Rule 1 Order 21, Rule 50 of the Civil Procedure Code, does not seem to be of any assistance in the instant case. The next case of Ramkaran Das Radhaballav v. Bhagawan Das Dwarkadas reported in : 2SCR186 was also cited on the scope inter alia of Rule 2 of O. 37 of the C. P. C. and is not necessary to deal with in detail. In the case of Official Trustee. West Bengal v. Sachindra Nath Chatterji reported in : 3SCR92 it was held that where a clause in a Trust Deed empowers the settlor to alter one term of interest given to its beneficiaries by Will alone, order of the court permitting settlor to revoke that clause and to permit such alteration being done by Deed inter vivos was void as the court was not competent to pass such order. This is a case, in my opinion, of inherent lack of jurisdiction of the court and is not of any help to any of the parties in the proceeding.
10. The next case cited is the case of Bhavan Vija v. Solanki Hanuji Khodaji Mansang reported in : AIR1972SC1371 in which Supreme Court laid down the duty of an executing Court, in the following words (at P. 1374) :
'It is true that an executing court cannot go behind the decree under execution. But, that does not mean that it has no duty to find out the true effect of that decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleading as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court often has to ascertain the circumstances under which these words came to be used. That is the plain duty of the executing court and if that court fails to discharge that duty it would be deemed to have failed to exercise the jurisdiction vested in it.'
The next case was the case of K. K. Deb, v. N. L. Choudhury, AIR 1927 Rang 258 (2) wherein it was laid down that there was nothing in the Civil Procedure Code of 1908 which prohibited the sending of a decree for execution to two courts at the same time. The said dictum was laid down on the basis of Saroda v. Luchmeeput, (1870-72) 14 Moo Ind App 529. The next case cited was the case of Dwarka Chuckerbutty v. Imperial Bank of India reported in (1929) 33 Cal WN 620 : (AIR 1929 Cal 529) wherein a Division Bench of this Court inter alia observed that decree can be sent for execution to the court within the jurisdiction of which the judgment debtor lives, for execution before all the properties attached by the court which passed the decree, are sold in satisfaction of the decree. The next case cited is the case of Tailors Priya, a Firm v. Gulabchand Danraj, a Firm. : AIR1963Cal36 wherein a Special Bench of this court laid down that absence of prescribed form of plaint under Order 37 enables the plaintiff to maintain a suit under Order 37 by presenting plaint showing his cause of action on the instrument and his intention to proceed under Order 37. This was cited in support of the plea made by the applicants that although there was no prescribed form of the plaint made by the Delhi High Court, the suit was filed not on the original consideration but on the negotiable instrument and this was validly decreed under Order 37 of the Code of Civil Procedure by the Delhi High Court.
11. In the case of Canara Industrial and Banking Syndicate Company Limited v. Narayan Venkatesh Shenoy. AIR 1942 Bom 15 the Bombay High Court held that where Bill of Exchange was drawn in Bombay but accepted by drawee at Calicut, the Bombay High Court has jurisdiction to entertain the suit for recovery of the amount if leave is obtained under Clause 12 of the Letters Patent. In the instant case, the hundies were drawn at Delhi and accepted at Calcutta. Thus part of the cause of action arose in Delhi and Delhi High Court had jurisdiction to entertain a suit in respect of the same. In Harkishore Barua v. Gura Mia Chowdhury. AIR 1931 Cal 387 a Division Bench of this Court held that only a holder of promissory note or hundi can sue on the same. In the instant case the holders of the hundies were the plaintiffs decree-holders. In the case of Santosh Kumar v. Bhai Moolsingh. : 1SCR1211 , the Supreme Court held that when defence to a negotiable instrument raises triable issue conditions cannot be imposed for giving leave to defend the suit. In the instant case as we have seen the Supreme Court itself imposed conditions for granting leave to defend the suit. Thus the defence in this case cannot be said to be bona fide. In the case of Jijabai Vithalrao Gaire v. Pathan Khan, : 2SCR1 it was held that father was the natural guardian of minor children and mother comes only after the death of the father. It was contended on behalf of the respondents that the decree is a nullity, because Delhi High Court has no jurisdiction to entertain or try the suit. The respondents relied on the case of Mathura Prasad Sariu Jaiswal v. Dossi-bai N. B. Jeejeebhoy. : 3SCR830 and submitted that the question relating to jurisdiction of a court cannot be deemed to have finally determined by an erroneous decision of that court if by an erroneous interpretation of the Statute, the court holds that it has no jurisdiction, the question would not operate -as res judicata. Similarly by an erroneous decision if the court assumes jurisdiction which it does not possess under the Statute, the question cannot operate as res judicata between the same parties. The next case cited was the case of K.K. Chari v. R. M. Seshadri, reported in : 3SCR691 in which it was laid down that the court must satisfy that a ground for eviction exists under the Tamil Nadu Buildings (Lease and Rent Control) Act, otherwise a decree passed even on compromise between the landlord and the tenant would be a nullity.
12. The next case cited was Nagindas Ramdas v. Dalpat Ram Iccharam reported in : 2SCR544 wherein it was decided that under the Bombay Rents Hotel and Lodging House Rates Control Act existence of one of the statutory grounds mentioned in Sections 12 and 13 is a sine qua non for passing a decree for eviction. A decree passed by consent of parties without a court's satisfaction about, the existence of a statutory ground for eviction is a nullity. In the case of Kali Charan Singha v. Bibhuti Bhusan Singha, AIR 1933 Cal 85 a single Judge of this Court held that the executing court cannot go behind the decree and question its validity except when lack of jurisdiction is obvious. Thus it was held that the decree against person under disability without proper representation cannot be challenged on that ground in execution. The decree will be binding. In the case of P. Krishnan Nair v, Ramchandra Vithal Sanghavi, : AIR1956Bom268 it was held that a decree which is passed without jurisdiction to pass it is a nullity and the question as to the absence of jurisdiction may be raised even in execution proceeding or in collateral proceedings. But where such an objection is raised in an execution proceeding, the decree must be apparently without jurisdiction i. e. on the face of it the decree must show that it was passed by a court which was incompetent to pass it. Where the court which passed it had or had no jurisdiction to pass it, it is necessary to make investigation then the executing court has no competence to permit that investigation to be made. The question as to whether the court had or had no jurisdiction to entertain the suit, must be regarded as finally decided by the decree of the court which tried the suit.
13. In execution no plea that merely challenges the validity or propriety of the decree on the ground that it is contrary to the provision of law can be raised. Thus in the instant case all the pleas that have been raised by the respondent is about the validity or propriety of the decree as being contrary to law cannot be raised in execution. (See) : AIR1956Bom513 Rana Harkrishnadas Lallubhai v. Rana Gulabdas Kalyandas). In the case of Mohanlal v. Benoy Krishna, : 4SCR377 it was observed by the Supreme Court that even an erroneous decision On a question of law operates as res judicata between the parties to it, the correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. The pleas taken by the respondents-judgment-debtors are about the incorrectness of the decision of the Delhi High Court and thus are barred by the principles of res judicata. It has even been held by the Supreme Court that decree passed in suit barred by time will not be a nullity provided the court passing the decree had jurisdiction over the party and subject matter. (See Ittyavira Mathai v. Varkey Varkey. : 1SCR495 . In Haridas Basu v. National Insurance Company Limited, (1931) 35 Cal WN 1096 : (AIR 1932 Cal 213) a Division Bench of this court held that an executing court has no jurisdiction to attach immoveable property unless such immoveable property is within the jurisdiction of such court or the person against whom the execution is sought is or resides within the jurisdiction of such court. In the instant case following the principle of that case the moveable properties of the judgment debtors which are within the jurisdiction of this court and of those judgment debtors who reside within the jurisdiction of this court, can be sold in execution. In Nirode Kali Roy Choudhury v. Rai Harendra Nath Choudhury. (1938) 42 Cal WN 87: (AIR 1938 Cal 113) it has been held that the question whether a property is the property of the judgment debtor and is liable to be sold in execution and a decree passed against him is a question relating to the satisfaction of the decree and comes within the purview of Section 47. Thus in the instant case it can be decided which are the properties of the judgment debtors that are liable to be sold in execution of the decree. The case of Ambalal Purushattam Das & Co. v. Jawarlal Purushattam Dave, : AIR1953Cal758 was cited in support of the contention that where a payee by a negotiable instrument is not certain, it is not a negotiable instrument, in the instant case the payee was certain and in any event if the decree has been made 'this question cannot be taken up in execution proceeding, in my opinion. It appears therefore that all the points raised in defence to the application must fail. There shall be an order in terms of the column 10 of the Tabular Statement except that the immoveable property at Baltikuri cannot be sold in execution of the decree by this court. Costs shall be added to the claims of the Decree-holder. Certified for two Counsel.