NAHARSINGH Vs. PIRTHISINGH

JUDGEMENT

(1.) The facts giving rise to this appeal are that the respondent Thakur Pirthisingh, Instituted a suit in the Court of the District, Judge, Jaipur City, for recovery of possession of certain plots of land situated in the village Korhi. Amongst other objections, it was pleaded by the defendants that the matter was exclusively triable by the Revenue Court, and that the civil Court had no jurisdiction to try and decide it. The District Judge dismissed the objection but at the same time he also dismissed the suit on other grounds, The plaintiff went in appeal to the High Court of Jaipur. There it was again contended by the defendants-respondents that the appellate Court had no jurisdiction to hear the appeal and it should be transferred to the Revenue Board under Sub-section (2) of Section 3 of the Jaipur State Grants Land-tenures Act. It was held by Verma C. J. and Ibrahim J. who constituted the Division Bench of the Jaipur High Court that the word "proceeding" appearing in. Sub-section (2) of Section 3 of the Jaipur State Grants Land Tenures Act of 1947 did not include an appeal from a decision in a civil suit and that they were competent to hear and decide that appeal. The learned Judges accordingly heard the appeal and decreed the suit with costs throughout. The plaintiff respondent then took out proceedings to get the said decree executed in the Court of the District Judge, Jaipur. Two separate applications were thereupon presented by the present appellants objecting to the execution of the decree on the ground that the appellate Court had no jurisdiction to pass the decree and therefore it was a nullity. It was pointed out that in the case of 'KALU v. BALU' and others subsequently decided by a Full Bench of the Jaipur High Court on 5th November 1949, it was held that the question of jurisdiction in the present case was not correctly decided. Both these applications were dismissed by the learned District Judge by an order dated the 22nd December 1949 on the ground that the question of jurisdiction having been once decided inter partes was res Judicata.

(2.) The appellants' advocate, Mr. Kasliwal contended that an executing Court can go behind the decree to see if the Court which passed the same had jurisdiction to hear and decide the suit. He has proceeded to argue that an erroneous decision on a question of law like that of jurisdiction even though inter partes is not res judicata. The advocate for the respondent has contested this argument with equal vehemence.

(3.) The appellants' advocate has referred to GORACHAND v. PRAFULLA KUMAR ROY', AIR (12) 1925 Cal 907 and 'SARABJIT PRATAP v. INDERJIT PRATAP', AIR (20) 1933 All 751. In the first case it was held by a Full Bench of the Calcutta High Court that: "where the decree presented for execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's persons to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction." In the second case also it was held by a Division Bench of the Allahabad High Court that it was open to the judgment-debtor even at the stage of execution of decree to raise the plea that the Court which passed the decree had no jurisdiction to try the suit. It is well settled law that the executing Court can go into the question of the jurisdiction of the Court passing the decree if it has not been agitated and decided on the original side but the point for our determination in this case is whether in a case where the question of jurisdiction has been already agitated and decided not only by the trial Court but also by the appellate Court, is it still open to the parties to reagitate the matter in the executing Court. The learned advocates for the parties have not been able to cite any authority having a direct bearing on this specific point. In the two cases cited above this point was not directly in question. In the first case 'AIR (12) 1925 Cal 907', the learned Judge had very cautiously used the expression by a Court which apparently had not jurisdiction" and then he followed the above quotation by saying that within these narrow limits the executing Court was authorised to question the validity of the decree. In a case where the parties have exhausted their arguments on the question oi' jurisdiction and the Court has given its decision it cannot be said that "apparently" it had no jurisdiction.