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Amalabala Dasi Vs. Sarat Kumari Dasi and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1932Cal380,137Ind.Cas.375
AppellantAmalabala Dasi
RespondentSarat Kumari Dasi and anr.
Cases ReferredGora Chand Haldar v. Profulla Kumar Roy
Excerpt:
- .....execution and in connexion with which, the order appealed from has been made by the subordinate judge. the subordinate judge has, upon certain materials to which he has referred in his judgment, come to the conclusion that there was. nothing to show that there was any contract for the repayment of the money in calcutta as was the plaintiff's case; and; he has held that there is no satisfactory evidence to show that the money was advanced in calcutta. on these grounds he has come to the conclusion that the suit was fraudulently instituted on the original side of this court and the said court had no territorial jurisdiction to pass the decree,2. we are clearly of opinion that it was; not within the competency of the executing court to challenge the validity of the decree which this.....
Judgment:

1. In this case the Subordinate Judge has refused to execute a decree passed on the original side of this Court, upon the ground that the decree-holder had fraudulently brought a suit on the original side of this Court when this Court had no territorial jurisdiction to pass a decree in the suit. He has purported to act upon the Full Bench decision of this Court in the case of Gora Chand Haldar v. Profulla Kumar Roy : AIR1925Cal907 . What has happened is this: the decree-holder, as plaintiff, instituted a. suit on the original side of this Court for recovery of a sum of money from the judgment-debtors on giving up her charge on a certain property under a mortgage bond which the judgment debtors had executed In the plaint that was filed, it was definitely averred that the money had been advanced in Calcutta and that the mortgagors had agreed to repay the loan with interest in Calcutta, as provided in the deed. In the plaint it was definitely stated that the cause of action for the suit had arisen in Calcutta. As the defendants who were then residing outside the local limits of the ordinary original civil jurisdiction of this Court, the plaintiff asked for and obtained leave to institute the suit under Clause (12), Letters Patent. The suit was not contested and an ex parte decree was obtained which formed the subject-matter of the execution and in connexion with which, the order appealed from has been made by the Subordinate Judge. The Subordinate Judge has, upon certain materials to which he has referred in his judgment, come to the conclusion that there was. nothing to show that there was any contract for the repayment of the money in Calcutta as was the plaintiff's case; and; he has held that there is no satisfactory evidence to show that the money was advanced in Calcutta. On these grounds he has come to the conclusion that the suit was fraudulently instituted on the original side of this Court and the said Court had no territorial jurisdiction to pass the decree,

2. We are clearly of opinion that it was; not within the competency of the executing Court to challenge the validity of the decree which this Court on its original side had made, upon the ground on which the order of the Subordinate Judge has been made. It is quite true that an executing Court is competent to refuse to execute a decree if it finds that the decree was made without jurisdiction. But the limits of the powers of an executing Court in this respect have been very definitely prescribed by the Full Bench decision of this Court in the case of Gora Chand : AIR1925Cal907 (supra) on which the Subordinate Judge purports to have proceeded but which, in our opinion, he ha9 entirely misappreciated. What has been laid down in that case is this:

Where a 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 a decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits, the executing Court is authorized to question the validity of a decree.

3. The word 'apparently' used in connexion with the proposition laid down by this Court, is a word which must always be very carefully kept in view. What the proposition means is that the executing Court would be competent to refuse to execute the decree only when on the face of the decree it would appear that the Court which passed it had no jurisdiction. When we say 'the decree' we mean the decree and the papers relevant for the purpose of understanding it. The proposition does not mean that, if there is a clear statement upon the plaint which gives the Court jurisdiction to entertain a suit, and if upon the basis of that jurisdiction the decree is passed by the Court without there being a challenge by the defendant as regards the territorial jurisdiction of the Court to pass the decree, it remains open to the defendant to question the jurisdiction of the Court after the decree has been made and in the course of its execution. That was exactly what was intended to he guarded against by the decision which the Full Bench passed in the case referred to above.

4. We are of opinion that the learned Judge's order is entirely wrong We accordingly allow the appeal and set aside the order appealed against, and direct that the execution be entertained and dealt with in accordance with law. The appellant is entitled to her costs in this appeal. Hearing fee is assessed at three gold mohurs.

5. The record must be sent down as early as possible.


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