NANDARANI BOSE Vs. RANCHHODDAS MULDAS RAMANUJ

JUDGEMENT

(1.) This Rule was obtained by the judgment-debtors-petitioners in Money Execution Case No. 10/77 and the order challenged is the order dated April 12, 1979, passed by the learned Subordinate Judge, 5th Court, Alipore.

(2.) The decree-holder opposite party instituted a money suit in the Original Side of this Court as against the present petitioners and the pro forma opposite party Badal Chandra Bose for recovery of his dues on promissory notes executed in his favour. In that suit the petitioners failed to avail of the conditional leave granted to them to defend the suit when they failed to furnish security as directed by the Court. There was an ex parte decree which was transferred by the High Court to the Court of the learned Subordinate Judge for execution. This led to the Money Execution Case No. 10/77 as aforesaid.

(3.) In this execution case the judgment-debtors-peiitioners filed an application described as one under Section 36 of the Bengal Money Lenders Act though the grounds taken were - (i) that the decree is non est in the eye of law and is void and is a nullity and not at all executable; (ii) that the decree is the result of fraud practised upon the Court; and (iii) assuming but not admitting that there is a valid decree, it is liable to be reopened under the provisions of the Bengal Money Lenders Act. They pleaded the decree to be nullity because, according to them, the High Court in the Original Side had no territorial jurisdiction to entertain the suit as the promissory notes were all executed beyond the said jurisdiction and no part of the cause of action arose within the said jurisdiction and also because the defendants were all residing beyond the said jurisdiction. Strangely, in this application they further pleaded the decree to be fraudulent on the ground that the promissory notes were all fabricated. The application was contested on behalf of the decree-holder opposite party who contested all the aforesaid objections raised as against the maintainability of the execution case itself.