1. This appeal raises a question of some importance which in so far as this Court is concerned is one of first impression.
2. The opposite party the respondent in this appeal obtained a decree against the appellant in the Mekliganj Court which is within the Native State of Cooch Behar. The decree was obtained ex parte. The judgment-debtor the appellant is a British subject residing at Jalpaiguri. The respondent had the decree transferred to Jalpaiguri for execution. The judgment-debtor the present appellant objects to the execution of the decree under Section 13 of the Code of Civil Procedure on the ground that the decree had been obtained by fraud and also that the Cooch Behar Court had no jurisdiction over him. The first Court decided the case in favour of the respondent for reasons that it is not necessary to recapitulate. The appellant appealed to the District Court. That Court held relying on the authority of a case S. Veeraraghava v. J. D. Muga  14 M.L.T. 96 that the executing Court could not go into the question of she jurisdiction of the Court which passed the decree when the decree was one to which the provisions of Section 44 applied. On this finding he dismissed the appeal.
3. The judgment-debtor has appealed to this Court. He contends that the case relied on by the respondent which was a decision of a single Judge of the Madras High Court has been expressly overruled by a Full Bench of that Court: Veeraraghava v. Muga Sait  39 Mad. 24 and is therefore no authority. In further support of the view that he would ask the Court to adopt he relies on the case of Jivappa Timmappa v. Jeergi Murgappa  40 Bom. 551.
4. We think that the appeal must be allowed. In the Madras Full Bench case it was held that it was open to the executing Court to whom a decree had been sent for execution under the provisions of Section 44 to refuse execution on the ground that the Court that passed the decree bad no jurisdiction to do so. Wallis, C.J., in disposing of the case remarked. ' I agree generally with the judgment of Sundara Ayyar, J. that Section 44 has not the effect contended for and that a British Court not to execute a decree of the Cochin Court passed without jurisdiction. That judgment is the judgment of a foreign Court within the meaning of Section 13, Civil Procedure Code and it would in my opinion require much plainer words than are to be found in Section 44 to show that it was the intention of the legislature that decree of foreign Courts to which Section 44 applies should be enforced in British Courts without regard to the provisions of that section. Full effect may be given to that section by holding that it was merely intended to alter the procedure by which such foreign judgments can have effect given to in British India. This was decided more than twenty years ago by Farran, J. in Haji Musa v. Purmanand  15 Bom 216 which apparently has not been questioned in our Courts until the present case and was known to the legislature when the provisions of the last Code were revised and the present Code was enacted.' Seshagiri Ayyar, J. states that in his opinion Section 44 of the Civil Procedure Code is subject to the same limitations as are contained in Section 13 regarding foreign Judgments.
5. The same view has been taken by the Bombay High Court in the case of Jivappa v. Jeergi  40 Bom. 551 a case practically on all fours with the present case. We see no reason to differ from these two decisions and we may adopt the reasoning of the learned Judges in those decisions as our own. We are therefore of opinion that the provisions of Section 13 of the Civil Procedure Code apply to decrees that are transferred to British Courts for execution under the provisions of Section 44. It was therefore open to the Lower Appellate Court to have gone into the question whether the decree was passed without jurisdiction. In this view of the case it would have been necessary to have sent fee case bank to the lower Appellate Court to decide whether the decree was made without jurisdiction or was obtain-ed by fraud. But the learned vakil who has appeared for the respondent states that if our decision is against him on the question whether the executing Court could go into the question of the jurisdiction of the Court to pass the decree then there is no necessity to send the case back to the lower Court for on the facts found by the lower Courts and on the authority of the decision of the Judicial Committee of the Privy Council in Gurdyal Singh v. Raja of Faridkot  22 Cal. 222 the decree that he seeks to execute is a nullity.
6. The appeal, therefore, succeeds and it must be held that there is no decree that the executing Court can execute. The application for execution must therefore be rejected.
7. The appellant is entitled to his costs is all Courts. Hearing fee one gold mohur.