RAM CHARAN SAHU Vs. SALIK RAM SAHU

JUDGEMENT

(1.) This is a second appeal from the judgment and decree passed by the learned District Judge of Azamgarh setting aside the judgment and decree passed by the learned Subordinate Judge of that district in a suit brought by the plaintiff- appellant for a declaration that simple money decree dated 28 May 1919 passed by the District Judge of Gorakhpur in insolvency proceedings in favour of the Official Receiver and against the appellant was without jurisdiction and therefore a nullity and that the property of the plaintiff attached in execution of that decree was not liable to attachment and sale.

(2.) It appears that the plaintiff appellant obtained assignment of two decrees from Ramanand and Naurangi who were subsequently declared insolvent by the District Judge of Gorakhpur. The plaintiff-appellant gave a discharge as regards those decrees either by receiving payments or otherwise relinquishing claim in respect of the judgment-debt. It is common ground that those decrees did not subsist on the date on which the District Judge passed the decree in question before us. The learned District Judge of Gorakhpur acting as Judge of the insolvency Court held the plaintiff appellant to be liable to the estate of the insolvents Ramanand and Naurangi in respect of the amounts recoverable under the decrees assigned to the plaintiff-appellant and passed a simple money decree against him for a sum of Rs. 2,831-5-3 in favour of the receiver Raghubir Pershad, who assigned the decree to Salik Rarn Sahu, the respondent before this Court. The latter obtained a transfer of that decree to a Court in the district of Azamgarh where, the property belonging to the plaintiff appellant is situate which was subsequently attached. The plaintiff appellant thereupon instituted the suit out of which the present appeal has arisen for the declaratory reliefs already detailed. His main attack on the right of defendant 2 to execute the decree dated 28 May 1919 is that the District Judge of Gorakhpur sitting as a Judge of the insolvency Court had no jurisdiction to pass a decree of the character which he did and therefore it was a nullity and incapable of execution. The Court of first instance upheld this plea and decreed the suit. On appeal by Salik Ram Sahu, the assignee from the receiver, the lower appellate Court agreed with the Court of first instance as regards the decree passed by the insolvency Court being void having been passed by a Court having no jurisdiction to pass it, but dismissed the suit on the ground that a certain order passed in execution proceedings operated as res judicata so as to preclude the plaintiff- appellant from raising any question with regard to the validity of the decree. Accordingly, he dismissed the suit. The present second appeal has been preferred by the plaintiff-appellant impugning the correctness of the view taken by the lower appellate Court.

(3.) Little need be said on the question as to whether the insolvency Court can pass a simple money decree against a third person as the question is concluded by a recent decision of a Bench of this Court in Letters Patent Appeal No. 104 of 1927, Salik Ram V/s. Lachmi Prasad which, it should be noted, arose out of a suit referring to the same decree as we are concerned with. In fact, the view taken by the Courts below which is supported by the ruling referred to has not been contested by the learned advocate for the respondents.