JAMMU AND KASHMIR BANK LIMITED Vs. SETH RAWINANDAN

JUDGEMENT

(1.) This appeal is directed againstthe order of the Court below executing the decree receivedby it from the District Judge, Jammu. The learnedcourt has held that the decree was a nullity and the respondent-judgment-debtor was also a displaced personwithin the meaning of S. 2(1) of the Displaced Persons(Debts Adjustment) Act, 1951, and the executionagainst him was barred by time.

(2.) Briefly stated, the relevant facts are that on 26/11/1949, the Jammu & Kashmir Bank Limited,the appellants herein, (hereinafter called "the Bank")obtained a decree from the court of the District Judge,Jammu, for recovery of Rs. 81,487/8.00against the partnership firm, Hindustan Trading Company, and its twopartners, Seth Ravi Nandan, the respondent to thisappeal and Kirpal Chander, on the basis of a cash creditloan account in which advances were made by the Bankto the firm against security of stocks of iron and steelpledged with the Bank. Part of the decretal amountwas realised by the Bank by sale of these pledged goods.To realise the balance the Bank applied for a transfercertificate for Delhi where the respondent, Seth RaviNandan, was stated to be residing and carrying on hisbusiness. By order dated 9/11/1961, the courtat Jammu issued a transfer certificate under Order 21,rule 6 of the Code of Civil Procedure. On 18/11/1961, the Bank, on the basis of this certificate appliedfor execution to the District Judge, Delhi who transferred the execution to Sub Judge First Class competentto execute the decree.

(3.) On 9/01/1969, the respondent filed objectionsunder section 47 of the Code of Civil Procedure againstthe execution and contended that the decree againsthim was passed ex-parte and the court passing it wasa foreign court and he had never submitted himself tothe jurisdiction of that court and as such the decreewas a nullity. He also contended that the liabilitycreated by the decree was in any case a debt within themeaning of Displaced Persons (Debts Adjustment) Act,1951 and that he was a displaced person within themeaning of this Act and was entitled to its benefit. Theexecution application was further pleaded to be barredunder section 37 of this Act. The appellant Bank resisted these objections. The court struck the followingissues: