BRIJ MOHAN DAS Vs. MTPIARI

JUDGEMENT

(1.) This is a revision under Section 115, Civil P.C., against an order passed by the Munsif of Shahganj in execution proceedings. The appellant Brij Mohan Das obtained an ex parte decree against the opposite party, Mt. Piari, for a sum of Rs. 550 in a suit, which, so far as the Civil Procedure is concerned, could be instituted in Benares and also in Jaunpur, the plaintiff having the choice of forum. The judgment-debtor resides in Jaunpur District and the decree-holder obtained a certificate of transfer of the decree for execution in Jaunpur. When he applied to the Court at Jaunpur for execution of his decree, the judgment-debtor objected on the ground that the Court which passed the decree sought to be executed had no jurisdiction, as he (the judgment-debtor) was an agriculturist and the suit against him could be instituted only in the District in which he resided. The Court executing the decree gave effect to this objection, holding that the Benares Court had no jurisdiction to pass the decree under execution. It is contended in revision that this view is erroneous.

(2.) In my opinion the order of the lower Court cannot be supported. It is not disputed that, but for the Agriculturists Relief Act, the Court which passed the decree had jurisdiction to entertain the suit brought by the appellant and to pass a decree on proof of his claim. The opposite party did not appear and did not raise the question as regards the forum selected by the appellant. She could have pleaded that she was an agriculturist and, therefore, the suit should have been instituted in the Jaunpur District only. She did not avail herself of the opportunity to raise such a plea and allowed an ex parte decree to be passed against her. It is a well known rule that the Court executing the decree cannot go behind it and allow its validity to be impugned. The case in which the Court executing the decree can disregard its apparent tenor are laid down in Cantonment Broad V/s. Kishan Lal and Thair Hassan V/s. Chander Sen . The present case does not fall within any of the exceptions therein referred to. Broadly speaking, it is not permissible for the Court executing the decree to embark on an inquiry into facts which, if established would show that the Court passing it had no jurisdiction to pass it. Where the jurisdiction of a Court to pass a decree depends on the existence of certain facts, the Court executing the decree shall refuse to take evidence in proof of those facts for the purpose of determining the jurisdiction of the Court passing the decree.

(3.) In the present case the lower Court was invited to hold that the opposite party was an agriculturist - a fact which did not appear on the face of the record. The Court enquired into that question and found that she was so. It may be pointed out that the fact that she was an agriculturist itself does not attract the application of Section 7, Agriculturists Belief Act, which enacts, inter alia, that notwithstanding anything contained in any other enactment for the time being in force, every suit for recovering an unsecured loan in which the defendant, or where there are- several defendants, any of the defendants, is an agriculturist, shall be instituted and. tried in a Court within the local limits of whose jurisdiction the agriculturist defendant, or any of the agriculturists defendants, where there are more than one such defendants, actually and voluntarily resides. It will be seen that another condition precedent to the application of Section 7 is that the suit should be "for recovering an-unsecured loan". "Loan" is defined in. the same Act as meaning: an advance to an agriculturist, whether of money or in kind, and shall include any transaction which is in substance a loan.