RAGHUBIR SARAN Vs. HORI LAL

JUDGEMENT

(1.) Lalas Raghubir Saran and Badri Prasad had instituted a suit in the Court of the Munsif of Sambhal against two minors Hori Lal and Kanahi Lal under the guardianship of one Budh <JGN>Sen</JGN> for enforcement of a mortgage dated 28th November 1913. This suit was registered under the number 897 of 1925. No part of the property comprised in the mortgage was situate within the jurisdiction of the Munsif of Sambhal. The defendants did not raise the plea that the suit was instituted in a Court without jurisdiction. The guardian of the minors absented himself on the final date of hearing, and eventually, an ex-parte decree was passed against the minors on 25 February 1926.

(2.) The property sought to be sold under the decree consisted of certain zamindari shares, a house and a shop. These were situate within the jurisdiction of the Munsif of Chandausi. Upon the application of the decree-holders, the decree was transferred for execution to the Court last mentioned. The minor judgment- debtors contested the application for execution, inter alia, on the ground that the decree passed against them was a nullity inasmuch as the mortgaged property was outside the territorial jurisdiction of the Munsif of Sambhal. The executing Court, by its order dated 5 February 1927, refused to entertain the plea and. directed the minor judgment-debtors to file a regular suit. This led to the institution of the present suit on 25 April 1927.

(3.) The plaintiffs filed the suit with their mother Mt. Gango as their next friend. They challenged the legality and validity of the decree in Suit No. 897 of 1925, upon the ground that it was passed by a Court without jurisdiction and was void, that it was vitiated by fraud and had been obtained in collusion with Budh <JGN>Sen</JGN> , the guardian ad litem, who had moreover acted with gross negligence and had not properly looked after the interest of the minors. The suit was resisted upon a variety of grounds. Fraud and collusion were denied and it was contended that the decree was not void on the ground that no portion of the mortgaged property was located within the jurisdiction of the Munsif of Sambhal and that the suit was barred by Secs.11, 21 and 47, Civil P.C. The trial Court dismissed the suit. It overruled the contention of the defendants that the suit was barred by Sections 11, 21 and 47, Civil P.C., but held that there was nothing on the record to show that any fraud had been practised by the defendants and that the decree was not null and void simply because the mortgaged property was outside the jurisdiction of the Munsif of Sambhal. Dealing with Secs.11, 21 and 47, Civil P.C., the trial Court made the following observation: The present suit was brought on the basis of fraud and negligence on the part of the guardian ad litem of the plaintiffs in the previous suit. Such a question was never decided before and hence I fail to understand how Section 11 can apply to it. Section 21, Civil P.C., lays down that no objection as to the place of suing shall be allowed by any appellate or revisional Court. Since I am neither sitting as a Court of appeal nor as a revisional Court, hence Section 21 has no bearing at all. Section 47 deals with questions relating to execution. The question of the validity of a decree does not relate to the execution, discharge or satisfaction of the decree, and hence it cannot be tried in execution proceedings. Such a question can only be tried in a regular suit brought for a purpose (sic).