PANCHKARI MAJUMDAR Vs. GIRIDHARIMAL MOHESRI

JUDGEMENT

(1.) This appeal raises a question of some importance which in so far as this Court is concerned is one of first impression.

(2.) The opposite party the respondent in this appeal obtained a decree against the appellant in the Mekliganj Court which is within the Native State of Cooch Behar. The decree was obtained ex parte. The judgment-debtor the appellant is a British subject residing at Jalpaiguri. The respondent had the decree transferred to Jalpaiguri for execution. The judgment-debtor the present appellant objects to the execution of the decree under Section 13 of the Civil P. C. on the ground that the decree had been obtained by fraud and also that the Cooch Behar Court had no jurisdiction over him. The first Court decided the case in favour of the respondent for reasons that it is not necessary to recapitulate. The appellant appealed to the District Court. That Court held relying on the authority of a case S. Veeraraghava V/s. J. D. Muga [1918] 14 M.L.T. 96 that the executing Court could not go into the question of she jurisdiction of the Court which passed the decree when the decree was one to which the provisions of Section 44 applied. On this finding he dismissed the appeal.

(3.) The judgment-debtor has appealed to this Court. He contends that the case relied on by the respondent which was a decision of a single Judge of the Madras High Court has been expressly overruled by a Full Bench of that Court: Veeraraghava V/s. Muga Sait [1916] 39 Mad. 24 and is therefore no authority. In further support of the view that he would ask the Court to adopt he relies on the case of Jivappa Timmappa V/s. Jeergi Murgappa [1916] 40 Bom. 551.