HARI GOVIND KULKARNI Vs. NARSINGRAO NOUHERRAO

JUDGEMENT

(1.) THIS is an appeal against an order of the District Judge of Belgaum dismissing an application for execution of a decree which had been passed by the Joint Subordinate Judge at Belgaum in Suit No. 246 of 1906. The decree was against defendant No. 1 personally and against the joint estate of defendants 1 and 2. It has not been made clear to us why the application for execution was not made to, or entertained by, the Court which passed the decree. But we will assume that the application was rightly made to the District Court. The learned District Judge dismissed the application on the ground that the decree was a nullity and incapable of execution. There are cases which were decided under the Code of 1882 in which the opinion was expressed that it is open for an executing Court to consider whether the decree sent to it for execution was passed by a Court having jurisdiction to pass it. The dictum to that effect in the Bombay Reports is to be found in Haji Musa Haji Ahmed v. Purmanand Nursey,(1890) I.L.R. 15 Bom. 216,and it was accepted in Imdad Ali v. Jagan Lal,(1895) I.L.R. 17 All. 478. The ratio of the dictum in Haji Musa v. Purmanand was that the Code recognizes in Section 225 the right of the executing Court to enquire nto the jurisdiction of the Court which passed the decree. That section, however, has been altered in the Code of 1908, for the words " or of the jurisdiction of the Court which passed it," have been omitted in Order xxi, Rule 7, and we think that the inference is clear that the (executing Court has no power under the present Code to question the jurisdiction of the Court which passed the decree under execution. We are, therefore, of opinion that the learned District Judge acted ultra vires in deciding that the decree which he was called upon to execute was a nullity. We further disagree with him in the reasons which he assigned for holding that the decree was a nullity. The facts upon which he based his conclusion were, that on the 13th May 1907, a few days before the. decree, a notification was issued under Section 13 of the Court of Wards Act I of 1905, to the effect that the Court of Wards would assume superintendence of the estate of the defendants with effect from the 15th May 1905. The joint Subordinate Judge was informed of the Scott C.J. Notification, and was asked by the defendants to make the Court of Wards a party. He, however, declined to do so, saying that the section had no retrospective effect. Presumably by "the section" he meant Section 32 of the Court of Wards Act of 1905. We agree with the learned Subordinate Judge in thinking that that section was not intended to apply to pending suits. In terms it refers to suits " brought by, or against," a Government Ward. The suit before the Joint Subordinate Judge was not such a suit. Section 32 must be rea with Section 31, which provides that before such a suit is brought notice shall be delivered to, or left at the office of, the Court of Wards. THIS is impossible in the case of a suit pending at the time of the assumption of superintendence of the estate by the Court of Wards. Moreover, the phraseology of Section 32 relating to suits makes no such distinction as that of Section 17 which relates to execution of decrees, and provides that no proceeding in execution of any decree against the Government Ward or his property shall be instituted or continued until the decree-holder files a certificate from the Court of Wards that the decree-claim has been duly submitted. That apparently is the only provision which the Legislature has thought necessary to make for the protection of the estate of a Government Ward where a decree has been passed in a suit instituted before the assumption of superintendence by the Court of Wards. For the above reasons, we set aside the order of the District Judge dismissing the Darkhast with costs. The respondents must pay the costs, if any, of the hearing in the lower Court and the costs of this appeal.