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Abdul Halim Abul HossaIn Khan Ghuznavi and ors. Vs. Hemendra Kumar Ray Chaudhury and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in96Ind.Cas.686
AppellantAbdul Halim Abul HossaIn Khan Ghuznavi and ors.
RespondentHemendra Kumar Ray Chaudhury and ors.
Cases ReferredGoura Chand Haldar v. Profulta Kumar Roy
Excerpt:
mortgage, suit - final decree passed without passing preliminary, decree--irregularity--jurisdiction, want of--decree, whether can be challenged in execution, proceedings. - .....against four defendants. the appellants are defendants nos. 2 and 4. at the trial of this suit defendants nos. 2 and 4 did not appear and defendant no. 1 alone appeared. he entered into a solenama with the plaintiffs. it is unnecessary to give the term's of the solenama in detail, one of them being that the compound interest was to be given up and it was agreed that this solenama should be incorporated in the decree and that this decree should be the final decree in the mortgage suit defendants nos. 2 to 4 did not appeal against this decree. this decree has now been put into execution and the judgment debtors nos. 2 to 4 who are the appellants before us raised objection contending that the decree was passed without jurisdiction. their contention is that it was not open to the.....
Judgment:

Cuming, J.

1. The facts of the case out of which this appeal arises are as follows: A certain suit was brought on a mortgage-bond against four defendants. The appellants are defendants Nos. 2 and 4. At the trial of this suit defendants Nos. 2 and 4 did not appear and defendant No. 1 alone appeared. He entered into a solenama with the plaintiffs. It is unnecessary to give the term's of the solenama in detail, one of them being that the compound interest was to be given up and it was agreed that this solenama should be incorporated in the decree and that this decree should be the final decree in the mortgage suit Defendants Nos. 2 to 4 did not appeal against this decree. This decree has now been put into execution and the judgment debtors Nos. 2 to 4 who are the appellants before us raised objection contending that the decree was passed without jurisdiction. Their contention is that it was not open to the trial Court to pass the final decree without passing a preliminary decree and that the Court in so doing acted without jurisdiction. The learned Subordinate Judge refused to entertain this contention. He held that it was not open to him to go into the validity or otherwise of the decree and proceeded with the execution. Against this order the v judgment-debtors Nos. 2 to 4 have appealed to this Court. The argument put forward by Dr. Mitra on their behalf is that the trial Court had no jurisdiction to pass the final decree without passing first a preliminary decree.

2. It is unnecessary to discuss whether the Court must pass a preliminary decree before he passed the final decree. Supposing for the sake of argument that the Court was wrong in passing the final decree without first passing, a preliminary decree still this is at the most an illegally or irregularity. But it cannot be said that the Court in so doing acted without jurisdiction. The Court had jurisdiction to decide the suit in question which was before him. It has not been suggested that the suit was beyond his pecuniary capacity or outside his territorial jurisdiction or, that he had no jurisdiction over one or all of the parties to the suit. It may be in deciding the suit he committed some irregularity or illegality. But that would not be to decide the suit without jurisdiction. As the Privy Council has pointed out a Court has jurisdiction to decide wrongly or rightly. It cannot, therefore, be said that the Court acted without jurisdiction. That being so it is not open to the Judgment-debtor to challenge the validity of the decree in the execution proceedings. This question has been set at rest by the Full Bench decision of this Court in the case of Goura Chand Haldar v. Profulta Kumar Roy : AIR1925Cal907 a decision to which my learned brother was a party.

3. The appeal, therefore, fails and is dismissed with costs. Hearing fee five gold mohurs.

Ghose, J.

4. I agree.


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