PRABHU DAYAL Vs. RAM NIK LAL

JUDGEMENT

(1.) THIS is a judgement debtor's execution first appeal. Originally two persons namely, Ram Nik Lal and Jadunath Singh were arrayed as respondents. Later respondent No. 1 died and the whereabouts of his heirs, if any, could not be traced out and eventually his name was deleted by my order dated 28-9-1978. He was the decree-holder and also auction-purchaser of a part of the property in dispute. In the circumstances the appeal abates against respondent No. 1, Ram Nik Lal but it survives against respondent No. 2 Jadunath Singh. I have heard the counsel for the appellant. None has appeared for respondent No. 2.

(2.) IN this case three points were urged before me on behalf of the appellant. The first question raised was the plea of lack of jurisdiction of the court which passed the decree. The decree-holder Ram Nik Lal had filed a suit in the court at Kanpur against the appellant Prabhu Dayal and had obtained an ex parte decree in execution of which the houses and land of the objector appellant were got auctioned. It has now been argued that the Kanpur court had no jurisdiction to entertain the suit and hence the decree under execution was a nullity. On facts it has been found by the court below that the objector had not succeeded in establishing that the suit which was filed before the Civil Judge, Kanpur could not have been filed in that court. It was Suit No. 14 of 1962 and the transaction giving rise to that suit must have related to an earlier period. Prabhu Dayal objector, no doubt, stated that it was settled between him and Ram Nik Lal at Chandwak that the payment would be made in instalments as price of cloth supplied and that Ram Nik Lal would come to Chandwak and realise the money. This statement was rightly disbelieved by the learned Civil Judge and I am also unable to give credence to the assertion that the creditor purchaser would submit to the position that he should approach the debtor at his residence to recover the money from him and the debtor should not himself care to send the money to the creditor. There is another circumstance which belies this assertion. It was elicited in the cross-examination of Prabhu Dayal that such agreement about the mode of payment was made only four or five years back. Prabhu Dayal was cross-examined on 8-10-1966 and if this version be accepted, the agreement should be taken to have taken place on a date when the suit itself was instituted as a pauper suit on 27-5-1961 in the Court of 1st Civil Judge, Kanpur. For this reason in the present case it is not possible to come to the conclusion that no part of cause of action arises within the jurisdiction of the Kanpur Court. Besides, I am of the opinion that subject to a few rare exceptions, the general rule is that an executing court cannot go behind the decree and particularly when the objection relates to purely territorial jurisdiction, it cannot be entertained by the executing court. Learned counsel for the appellant referred me to the following dictum of Sulaiman, C.J. in the Full Bench decision of this Court in Cantonment Board v. Kishan Lal, AIR 1934 All 609 (at p. 613) :- "But it is not possible to lay down broadly that an execution court can in no circumstances go behind the decree and must of a necessity shut its eyes to circumstances under which the decree came to be passed."

(3.) HENCE, I am of the opinion that the plea with regard to lack of territorial jurisdiction could not be entertained by the executing court in the present case.