BAI SHAKRI Vs. BAPUSINGHJI TAKHATSINHJI

JUDGEMENT

(1.) THIS Second Appeal raises some interesting questions of law and one of them is whether a decree passed in a suit against a Ruling Chief without obtaining the previous consent of the Central Government under Section 36 of the Civil Procedure Code can operate as res judicata in the subsequent execution proceedings. The other question, really another facet of the same contention, is whether the Court to which a decree is transferred for execution has, under Order 21, Rule 7 of the Code, the power to question the jurisdiction of the Court which passed the decree. The matter has been ably argued before me by Mr. Patwa, who appears for the appellant.

(2.) THE appellant obtained a decree on a promissory note in a suit filed by him against the respondent in the Court of the Civil Judge at Himatnagar. A written statement was filed by the respondent, the Chief of Vasna State, and in substance one of the contentions raised by him was that he was a Ruling Chief when the decree was passed and was, in the absence of a certificate under Section 86 of the Code, not liable to be sued in the Municipal Courts of this country. He did not, however, appear at the hearing of the suit and the decree was passed ex parte. A darkhast filed by the decree-holder on 29th July 1953 was dismissed because one of the contentions raised on behalf of the judgment-debtor was that in any case the decree could not be executed against him in the absence of such certificate On 21st April 1954 the decree-holder, alter obtaining a certificate to execute the decree, filed the darkhast out of which arises this second appeal.

(3.) BEFORE the executing Court to which the decree had been transferred, a contention was raised on behalf of the judgment-debtor that the decree against him was a nullity because before filing the suit no certificate as required by Section 86 of the Civil Procedure Code had been obtained by the plaintiff. That contention prevailed and the darkhast was dismissed. An appeal preferred against that order was also dismissed by the lower appellate Court and 1he decree-holder has now come to this Court in second appeal.