UNION OF INDIA Vs. KAZI SIDDIQUE AHMED

JUDGEMENT

(1.) In this reference a Division Bench of this Court has referred the following questions to the Full Bench, namely, (1) Is service of notice under Section 80 of the Code of Civil Procedure a part of the cause of action for the purpose of determining the question of jurisdiction? . (2) Was the case Dominion of India v. Jagadish Prosad Pannalal a firm, 84 Cal LJ 175 : (AIR 1949 Cal 622) rightly decided in so far as it held that service of notice under Section 80 forms part of the cause of action on the question of jurisdiction? The opposite party obtained a decree for a sum of Rs. 575/- (Rupees five hundred and seventy five) only together with costs against the petitioner as compensation for non-delivery of certain goods carried by the railway. The petitioner contested the suit by filing a written statement but did not challenge the jurisdiction of the Trial Court to try the suit. A contested decree was passed in favour of the petitioner and when that decree was put into execution the petitioner took the plea that the decree was a nullity because it was passed by a Court having no territorial jurisdiction and as such the decree could not be executed. The executing Court held that since the notice under Section 80 was served upon the petitioner within the jurisdiction of that Court, that fact conferred jurisdiction upon the Trial Court to try the suit. Against that order of the executing Court the petitioner obtained a Rule and contended that the service of notice under Section 80 of the Code of Civil Procedure is no part of a cause of action and is not sufficient by itself to confer territorial jurisdiction upon any Court. On this point there are conflicting decisions of this Court and for that reason the Division Bench has referred that question to the Full Bench.

(2.) On examining the records and after hearing Dr. Gupta in support of the petition I have come to the conclusion that the questions which have been referred to the Full Bench by the Division Bench do not arise in the facts of this case because, in my view, the petitioner is not entitled to raise the question as to the absence of territorial jurisdiction of the Trial Court for the first time in execution. Reliance was placed on behalf of the petitioner upon the Full Bench decision of this Court in the case of Gora Chand Haldar v. Prafulla Kumar Roy, ILR 53 Cal 166: (AIR 1925 Cal 907), for the proposition that a point like the present one can be raised in execution although not raised in the suit. The Full Bench decision, however, does not lay down any such proposition. The proposition that the Full Bench lays down is that if the decree presented for execution was made by a Court which "apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person to make the decree, the executing Court is entitled to refuse to execute it." The question before us is whether the absence of territorial jurisdiction of the Trial Court in the present case is apparent on the face of the decree. I have examined the decree that has been passed by the Small Causes Court in this case and I do not find that there is anything in that decree to justify the conclusion that the Trial Court had no territorial jurisdiction to make the decree. The Full Bench decision in Gora Chand Haldar's case has been considered in subsequent decisions of this Court amongst which reference may be made to the case of Amalabala Dasi v. Sarat Kumari Dasi, 54 Cal LJ 593: (AIR 1932 Cal 380) and it has been held in subsequent cases that if there is some ambiguity in the decree, the pleadings of the parties may be looked into for the purpose of ascertaining whether there was any apparent want of jurisdiction of the Trial Court in respect of the decree under execution. In this case there is no ambiguity in the decree but still I have looked into the pleadings of the parties. In paragraph 7 the opposite party alleges certain facts which confer territorial jurisdiction upon the Trial Court. Those facts are not traversed in the written statement filed by the petitioner. In these circumstances the question as to the absence of territorial jurisdiction of the Trial Court must be deemed to have been decided against the petitioner by the Court which passed the decree.

(3.) For the reasons given above it is impossible for me to hold that the questions sought to be raised by the petitioner arise for consideration in this case. I do not, therefore, propose to answer any of the questions referred to the Full Bench.