RAJARAM SAH Vs. NARAD THAKUR

JUDGEMENT

(1.) This is an appeal by the judgment-debtor from the decision of the District Judge, Motihari, dated 1-12-1956, who in disagreement with the learned Munsif, held that the decree was not a nullity and allowed the execution to proceed.

(2.) The facts are these. The respondent instituted Money Suit 562 of 1953 against the appellant for recovery of Rs. 2244, principal and interest, on the basis of a promissory note. This suit was instituted in the Court of the Munsif, Motiliari. At the time of the institution of the suit Mr. Umakant Jha was the Presiding Officer. He had powers to try suits up to the value of Rs. 4,000/-. Having regard to the value of the suit Mr. Jha was competent to entertain and dispose of the suit. But before the suit was heard and decided, Mr. Jha was transferred and was succeeded by Mr. Bishwanath Prasad. The pecuniary jurisdiction of the latter extended up to Rs. 1000/- only. By notification No. 303A dated 5-11-1954, he was soon vested with powers to try under the ordinary procedure original suits up to Rs. 4000/-in value arising within the local limits of the Motihari Munsif. A copy of this notification was sent to the District Judge of Champaran for information and for communication to Mr. Prasad as soon as he joined at Motihari with a direction that the powers should not be exercised till they were notified in the Bihar Cazette (vide exhibit 2, dated 17-11-1954). The aforesaid notification was published in the Bihar Gazette of date 15-12-54. It appears, however, that after the notification dated 5-11-54, vesting him with powers to try suits up to Rs. 4000/- in value and before its publication in the Bihar Gazette, he tried the said money suit and passed a decree after contest by the judgment debtor in favour of the plaintiff on 27-11-54. The decree was sealed and signed on 6-12-54. The defendant did not prefer any appeal against the said judgment and decree which eventually became final. The respondent presented an application for execution of the decree on 8-9-55 which was registered as Money Execution Case 569 of 1955. On 25-11-55 the judgment debtor appellant filed an application under Section 47 of the Code of Civil Procedure raising objection that the decree was without jurisdiction and, therefore, null and void and not executable. His submission was that on the date the learned Munsif tried and disposed of the money suit his pecuniary jurisdiction did not extend beyond Rs. 1000/- and since the value of the suit was Rs. 2244/- he was not competent to pass the decree. This objection prevailed in the executing Court, and the execution was dismissed. The decree-holder carried an appeal to the District Judge, and the learned District Judge set aside the order of the learned Munsif holding that the decree was not a nullity and directed the execution to proceed. The judgment debtor has come up in Second Appeal against the said order.

(3.) Mr. Thakur Prasad appearing for the appellant contended that the suit being beyond the pecuniary jurisdiction of the learned Munsif the decree passed by him was wholly without jurisdiction and a nullity, and, therefore, the judgment debtor was entitled in law to object to the execution of the decree. In support of his contention he relied upon the following observations of their Lordships of the Supreme Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340: