SHEO TAHAL RAM Vs. BINAEK SHUKUL

JUDGEMENT

(1.) This is a decree holder's appeal arising out of execution proceedings consequent upon the transfer of a decree by a Court of a Native State. The decree holder brought a suit in the Bhadohi Court within the Benares State against three defendants including Binaek Shukul, the present respondent, and his deceased father Persidh Narain. The summonses were served personally, but they did not appear to contest the claim. The plaintiff led some evidence and the suit was decreed on the merits on 27 July 1916. The other execution records are not before us and the whole history of the execution for this long period is not quite clear. Certain facts however have been definitely found by the Courts below and they are as follows: The objector although served personally did not choose to appear in the Court of the Native State, the decree was passed on the merits, the decree-holder executed his decree within British India several times; apparently in 1926 the decree was transferred to the Mirzapur Court for execution, the decree holder got certain moveable properties of the judgment-debtor attached, the judgment debtor appeared in the Mirzapur Court, deposited Rs. 100 in part payment and asked for three months more time so that he might pay the whole decretal amount, apparently time was given to him; though it is not clear whether the decree-holder had expressly consented to this arrangement; but it is perfectly clear that up to that time the judgment debtor raised no objection as to want of jurisdiction; apparently execution was retransferred to Benares.

(2.) On an application of the decree holder the execution of the decree was transferred to the Mirzapur Court a second time. After the receipt of the record the decree holder applied on 13 November 1928 for the execution of the decree by the attachment and sale of fresh property. On 11 December 1928 the judgment- debtor objected that the Bhadohi Court had no jurisdiction to pass the decree against him when he was net a resident of the Native State and that the said decree is not capable of execution.

(3.) The first Court distinctly found that the decree of the foreign Court was pronounced against an absent foreigner and was therefore an absolute nullity unless it could be shown that the defendant had in any way submitted to the jurisdiction of the said Court. In the grounds of appeal before the lower appellate Court the decree-holder did not question the finding that the decree was against an absent defendant, but urged other pleas. The lower appellate Court has agreed with the view of the trial Court and affirmed its decree.