KANHAIYA LAI KOTHARI Vs. BIBI ZOHARA

JUDGEMENT

(1.) Whether the transfer of a decree for execution to a Court (other than the trial Court) would clothe such executing court with jurisdiction to entertain a suit, challenging the very validity of the original decree is the somewhat interesting question necessitating this reference to the Division Bench.

(2.) The facts are not in dispute and lie in a narrow compass. Way back in 1971, the defendant petitioner instituted a money suit against the plaintiffs opposite party in the Court of Civil Judge of Gyanpur in the district of Varanasi, in the State of Uttar Pradesh, and obtained and ex pane decree therein. The said decree was later transferred to the Court of Arrah and thereafter sent for execution to the Court of Subordinate Judge at Buxar, where it is pending in Execution Case No. 14 of 1972. The plaintiffs opposite party, thereafter, instituted title Suit Mo. 154 of 1973 on 6th of December, 1973, in the Court of the Subordinate Judge, Buxar, to challange the very validity of the said decree on the ground that it had been obtained by fraud etc. and the cause of action arose from the knowledge of such fraud committed within the jurisdiction of the Buxar Court. Therein they further claimed the relief of permanent injunction restraining the defendant petitioner from enforcing the decree. On the 31st of December 1974, a written statement was filed in which no question with regard to the jurisdiction of the Court of Buxar, was raised and the issues in the suit were settled on the 16th of January, 1975, Later, after due notice and hearing the parties, the learned Subordinate Judge, Buxar, by his order dated the 8th of June, 1976, granted a temporary injunction to the plaintiffs opposite party on their furnishing security to the satisfaction of the Court.

(3.) It was only on the 29th of April, 1980, that an application was filed on behalf of the defendant-petitioner taking an objection that the Court at Buxar had no jurisdiction to try the suit because the original decree had been granted by the Subordinate Judge of Gyanpur, in the district of Varanasi, in Uttar Pradesh, and, therefore, this suit should have been filed in the said Court. The Trial Court by order dated 9th of April, 1981, which is under revision, rejected the application on the twin ground that it had jurisdiction to try the suit, and further on the ground that originally no objection whatsoever was taken on behalf of the defendant-petitioner to jurisdiction which was now sought to be raised after a lapse of nearly seven years.