GENA Vs. BIRDHICHAND

JUDGEMENT

(1.) THIS is the judgment-debtors' appeal in execution proceedings and arises in the following circumstances :

(2.) ON 13-11-35, respondent, Birdhichand, obtained a money decree from the High court of Judicature at Bombay in its ordinary Original Civil Jurisdiction against 5 persons, namely Narsilal, Hansa, Umaid Mal, Khuma and Ghena, on 27th november 1958, he got the said decree transferred from Bombay High Court under Section 39 and Order 21, Rules 5 and 6 of the Civil Procedure Code to be executed against defendants Nos. 1, 4 and 5. On 13-1-54, he presented an application for execution of the same decree in the Court of the Civil Judge, Pali. It was mentioned in that application that the total decretal amount including interest realisable upto the date of the application was Rs. 19,776-8-0, that Rs. 191-9-0 were received from the judgment-debtors on 23-9-41, and therefore, a prayer was made for realising Rs. 19,585 from the judgment-debtors. The judgment-debtors, in their turn raised several objections against the executability of the decree. Those objections were dismissed by the learned Civil Judge, Pali on 6-11-54, and the present appeal is directed against that decision.

(3.) LEARNED counsel for the appellants had raised many objections in the memorandum of appeal, but only three contentions have been pressed before us at the time of arguments. The first contention of the appellants' learned counsel is that the decree which is sought to be executed is a foreign decree which was passed against non-resident foreigners and therefore it is not executable in rajasthan. The next contention is about limitation and the third is to the effect that the plaintiff bad filed a suit in a civil Coutt at Pali on the basis of this decree and judgment on 12-11-41, that it was, dismissed in 1954 and thus, there being another decree relating to the dismissal of the respondent's suit, the previous decree was not executable in this State. Learned counsel for the respondent has, on the other hand, tried to support the lower Court's decision. It would be proper to take up the objections in seriatim.