L I C OF INDIA Vs. PARMESHWAR PRASAD

JUDGEMENT

(1.) This appeal is directed against the order dated 6th July, 1972, passed by second Subordinate Judge, Gaya on an application filed before him by the judgment-debtor of Execution case No. (sic) of 1968 (sic) (which was for delivery of possession) pending in his court, which application of the judgment-debtors was filed under S.151 of the Civil P.C. (hereinafter referred to as "the Code"), the learned lower Court treating that application as that filed under S.47 of the Code, has allowed the objection of the judgment-debtor against the decree-holder"s execution case for delivery of possession.

(2.) The facts giving rise to that application filed by the judgment-debtor lie on a narrow compass like this, one Parmeshwar Prasad Bhadami had in 1959 borrowed a sum of Rs. 2,80,000/- from Empire Insurance Company, Bombay (which subsequently merged into the Life Insurance Corporation of India, the present appellant). For that loan, a promissory note was executed by Parmeshwar Prasad Bhadani and his father Chatturam Bhadani who also gave in security a landed property situated within the jurisdiction of the court of Subordinate Judge, Gaya. Since the head office of that Insurance Company was at Bombay, the loan was taken at Bombay by the deposit of title-deeds by the loanee at Bombay. Then the Life Insurance Corporation of India filed Mortgage Suit No. 272 of 1954 in the original jurisdiction of the High Court of Bombay as the Bombay High Court in its original jurisdiction had jurisdiction to receive and determine such suit under Cl.12 of the Charter of Letters Patent under the High Courts of Calcutta, Madras and Bombay. The Bombay High Court passed a preliminary decree on 21-7-1959 and then finally decreed on 19-2-1960 with a direction to the judgment-debtor to pay the decree within certain time failing which the mortgage-property be put to sale and if the same would not be sufficient, the remaining money will be realised by a personal decree against the judgment-debtor. That landed property of Gaya was sold on 23-11-1964 in an auction in the execution of that decree at Gaya under the supervision of an Officer of the Bombay High Court according to the rules provided in this respect. The decree-holder purchased the property in the auction-sale and the sale was confirmed on 29-1-1965 and a sale-certificate thereof was granted by the High Court of Bombay. Thereafter an application by the decree-holder for Dakhaldahani was sent for execution to the Subordinate Judge at Gaya (through the District Judge, Gaya) by transfer of the decree. That application for the Dakhaldahani was registered in the Court of Subordinate Judge, Gaya as Execution case No. 4 of 1966. In that execution case, the judgment-debtor, namely, the present respondent filed an application under S.151 of the Code raising an objection that no Dakhaldahani could be effected by the decree said to have been passed by the Bombay High Court as the decree passed by that Court is a nullity in view of the fact that it was a mortgage-suit with respect to land which lay within the jurisdiction of Gaya Court and not within the jurisdiction of Bombay Court. The decree-holder resisted that objection of the judgment-debtor, but the executing court, namely, the Second Subordinate Judge"s Court of Gaya, accepted the objection of the judgment-debtor holding that the High Court of Bombay had no jurisdiction to pass the decree in question and as such it was a nullity, and thus refused to execute the decree and the Dakhaldahani in pursuance to that. The decree-holder, namely, the Life Insurance Corporation of India has filed this appeal against that order of the Second Subordinate Judge, Gaya.

(3.) In this appeal the respondents-judgment-debtors have supported the order of the lower court basing on the selfsame ground of objection against the Dakhaldahani which they had taken before the lower court (executing court) claiming (i) that the decree passed by the Bombay High Court was a nullity and could not be executed; (ii) that the Gaya Court could not give Dakhaldahani on the strength of the sale-certificate granted by the High Court, which sale certificate rather could be treated as a decree satisfied by the sale and as such there was nothing for the Bombay High Court to transfer the decree to the Subordinate Judge, Gaya for execution and to give Dakhaldahani. The appellant-decree holder has challenged the order of the learned lower court on the ground (i) that the Bombay High Court had jurisdiction to pass the decree under Cl.12 of the Letters patent; (ii) that the judgment-debtor had raised an objection regarding jurisdiction in the suit itself which was decided against him and since he did not prefer any appeal against it, it was final and would operate as res judicata; (iii) that the Bombay High Court was competent to try the suit, and that the objection as to the territorial jurisdiction is such which did not go to the root of the jurisdiction of that High Court and, therefore, the decree could not be said to be a nullity, and (iv) that the sale-certificate granted by the Bombay High Court will be treated to be in law as a decree which could be executed by a transferee court, namely, the Gaya Court.