MANAK CHAND Vs. RAO SHAMBHOO SINGH

JUDGEMENT

(1.) THIS is a Civil Execution Second Appeal by the decree-holder against the judgment of the District Judge, Ajmer, dated the 27th of October 1956, confirming on appeal the order of the Sub Judge, First Glass, Ajmer, dated the 27th of September 1954, dismissing the execution petition of the appellant.

(2.) THE facts leading to this appeal may briefly stated thus - A decree was obtained by Sunderlal against Rao Shambhoo Singh from the court of the Civil Judge, Jaipur, on the 31st of August 1944. THE defendant in that case failed to put in his appearance and the case proceeded ex parte against him and an ex parte decree for Rs. 3,107/2/- was passed. After the formation of the State of Rajasthan, the decree-holder applied for transfer of the decree for execution to the court of the Civil Judge, Ajmer, and the decree was accordingly transferred to the court. THE judgment-debtor filed an objection that the decree was not executable against him at Ajmer being a decree of a foreign court against a non-resident foreigner, who did not submit to the jurisdiction of the court. It was also urged that the judgment-debtor could not be held liable for the debts of his father, on account of the provision of sec. 29 of the Ajmer Land Revenue Regulation (II of 1877), which lays down that no money decree can be passed against any person as the representative of a deceased Istimrardar. THE judgment debtor claimed that he was an Istimrardar within the meaning of sec. 29 of the Ajmer Land Revenue Regulation. THE court executing the decree, accepted the objection of the judgment-debtor and dismissed the execution petition. On appeal, the learned District Judge upheld the decision and concurred with view of the trial court that the decree was not executable as it was a nullity, being a decree of a foreign court against a non-resident foreigner, who did not submit to the jurisdiction of that court. On the second point, regarding the application of sec. 29 of the Ajmer Land Revenue Regulation, the opinion of the first court was not approved by the learned District Judge, on the ground that an objection of that nature could not be agitated before a court in execution of a decree, and it could only be raised at the time of the trial of the suit. However, in view of his opinion on the first point, the learned District Judge dismissed the appeal.