Anand Rao vs Kishendas (deceased) Per L.R. Venkatidas

Mohamed Ahmed Ansari, J.—This execution second appeal by the judgment-debtor has been referred to the Full Bench, because a Division Bench which originally heard, the appeal, entertained doubts about the correctness of--Mohd. Sherfuddin v. Gopikishen 33 DLR 455 (A), wherein it was held that the execution court can entertain objections regarding the territorial jurisdiction of the court which had passed a decree on the basis of the award and can decide the decree to be a nullity on the ground of absence of territorial jurisdiction of the court. The facts of this case, in order to appreciate the point may be shortly narrated.

On Aban 7, 1331 F. (12-9-1922) the District Judge of Aurangabad passed a decree on the basis of an award of Thir 27, 1331F (1-6-1922). By the decree the Plaintiff was to receive Rs. 2,401/- in annual instalments of Rs. 600/- and the first was payable on Khurdad 1, 1332F. (6-4-1923). To secure the payment of these instalments nine plots of land situated in Nagarala, Taluka Khadka were mortgaged and on failure to pay any one instalment, the decree-holder was authorised to recover the entire decretal amount.

It appears from the record that no instalment was paid and the decree-holder filed on Ardibehist 10, 1334F. (14-3-1925) an application seeking transfer of the decree to Nanded District where the properties mortgaged were said to be situated. A transfer order was made; but it is not clear what steps were taken in the court to which the decree was transferred. The second execution application was dismissed by the court which passed the decree, because of default of the decree-holder and in the third application to the same court the properties mortgaged were mentioned to be within the jurisdiction of Atraf Balda Court. This application was also dismissed for default.

Then the application which has given rise to the present second appeal was filed on Ardibehist 16, 1334F (20-3-1925) and the Aurangabad Court was requested and did transfer the execution proceedings to Nanded Court. The Nanded Court on Khurdad 30, 1345F (4-5-1936) directed auction of the mortgaged property through the revenue authorities according to the provisions of the then Hyderabad Code of Civil Procedure. In these proceedings as late as Amardad 29, 1349F (4-7-1940)'' objections were raised that the Aurangabad court; was not authorised to pass the decree as the mortgaged properties were situated in the Nanded District.

The decree-holder claimed that the Aurangabad. Court had jurisdiction to pass the decree and he further pleaded that the objection should have-been raised when the application to file the award was made and could not be raised in execution, proceedings. The objection of the judgment-debtor as to jurisdiction was rejected by the two lower courts, but in the High Court it was pressed with special reliance on the case reported in ''38 DLR 455 (A). As there were divergent views relating to the applicability of Section 21 of the CPC which is similar to Section 16 of the Hyderabad CPC to execution proceedings and there was no Pull Bench Authority of this High Court to guide us, the Division Bench referred the entire case to the Pull Bench.

Before us two arguments have been urged in support of the appeal:

(1) The absence of territorial jurisdiction renders the decree a nullity and therefore the execution court can entertain such objection;

(2) In so far as the execution application is beyond 12 years it should be dismissed u/s 262 of the Hyderabad Code of Civil Procedure, which is similar to Section 48, Code of Civil Procedure.

In support of the first argument the learned advocate of the Appellant has relied on the full bench case of-- Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, , wherein it has been held that a decree by a court without pecuniary or territorial jurisdiction or in absence of control over the person of the judgment-debtor, can be challenged in the executing court, which can refuse to excute it on the ground that it has been passed without jurisdiction.

Reliance was also placed on the case of-- Rabindra Nath Chakravarthi Vs. Jnanendra, Mohan Bhaduri and Others, . A Division Bench in the case had held that an objection in the execution proceedings relating to a decree being a nullity, which was passed on the basis of an award can be taken in execution proceedings and the court was competent to treat the decree as a nullity. This was upheld by the Privy Council in-- AIR 1933 61 (Privy Council) . References were also made to the two authorities of the Nagpur High Court-- AIR 1933 211 (Nagpur) , and--Uttamchand Motilalji v. Wasudeo Devrao AIR 1946 Nag 311 (F), that the execution court is entitled, where a decree is patently without jurisdiction and a nullity, to question its validity.

After a very careful study of the aforesaid authorities we think that the authorities laying down the general competency of execution courts to enquire into a decree being a nullity is not relevant where the question is whether Section 21 CPC should govern execution proceedings also. The Section says that objection as to jurisdiction should be raised in the original court at the earliest possible opportunity and should not be entertained by the appellate or revision court unless the decision on it has caused failure of justice. We think that the Section lays down the law relating to the territorial jurisdiction of all Civil Courts, which should be applied, whenever questions of territorial jurisdiction arise. If failure to raise objection precludes the appellate and revisional courts from entertaining it, the execution courts should also be precluded, being tribunals wherein original proceedings are entertained.

We therefore hold that the correct view of the law is that which was taken by the Pull Bench of the Madras High Court in--Zamindar of Ettiyapuram v. Chidambaram Chetty AIR 1920 Mad 1019 (G). In the case the view taken was that failure to take objection as'' to territorial jurisdiction is cured by Section 21, CPC and where such failure is cured for all purposes of the suit obviously it cannot be excluded for the purposes of execution proceedings. Wallace, C.J., at page 1024 sums up the position as follows:

...The effect of the Section, in my opinion, is that objections which the appellate or revisional court is thereby precluded from allowing must be considered cured for all purposes unless taken before the passing of the decree in the original court. The ordinary way of questioning a decree passed without jurisdiction is on appeal or in revision, and if this is forbidden, a court of first instance cannot in execution do that which the appellate or revisional court is precluded from doing.

We would next refer to another Pull Bench case of--Sheo Behari Lal v. Makraud Singh AIR 1935 Oudh 358. (H), where Srivastava, J. observed that a defect in the territorial or pecuniary jurisdiction such as can be cured by Section 21: CPC does not make the decree ab-initio void and a nullity, so as to justify the execution court going behind it. Again in the case of the--Fir Jagniram Premsukh v. Ganpati Damaji AIR 1941 Nag 36 (FB) (I), it has been held that the, rule limiting the territorial jurisdiction of courts to property situate within their territorial limits can be validly waived by submission.

The case of-- Cantoment Board Vs. Kishan Lal , also supports the view that an objection as to jurisdiction which could have been taken but was not raised can-not be raised in the execution department. The same court in-- Shambhu Singh Vs. Ram Pal Singh, , has held that execution court can only go behind the decree; in m exceptional cases and it cannot, except where the property be outside British India, entertain an objection about the court which passed the decree being without territorial jurisdiction. Then there is the Full Bench authority of--Musaji Lukmanjl v. Durga Das'' AIR 1946 Lah 57 (L), that the, question of territorial jurisdiction of a Court is; not a question of inherent jurisdiction and it can; be waived by a party.

We think that the proposition of law is supported by ample authority that, the absence of territorial jurisdiction in the court which passed a decree, and where the objection relating to such an absence is waived, cannot be reagitated in execution proceedings. We further think that because of this preponderance of authorities the opposite view expressed in ''38 DLR 455 (A)'', is not correct. We, therefore, hold that the correct proposition of law is that the provision of Section 21, CPC applies to the executing court, and on the failure to raise objection in the court which passed the decree and in absence of any miscarriage of justice, the execution courts are 1 precluded from declaring a decree to be a nullity 1 on this ground.

In the particular case it is apparent that the judgment-debtor did not raise any objection at the time the decree was passed, and also for more than 12 years the judgment-debtor had not raised the objection in his earlier applications to allow him to do so now would amount to permitting him to get out of a just liability. For if the right to realise from the mortgaged properties fails the execution application to enforce personal payment would be open to the objection that it is a new prayer and cannot be made after 12 years from the date of the decree.

This brings us to the second argument. The learned advocate of the Appellant has argued that as in the earlier applications the decree holder had not been asking for execution by the sale of the mortgage properties this prayer cannot be granted after lapse of 12 years. We think there is some misunderstanding as to the correct legal position. u/s 48, CPC which 1st similar to Section 262 of the Hyderabad CPC the lapse of 12 years does not automatically result in dismissal of every execution application. These provisions only preclude to executing court from granting any fresh prayer which had not been included in the earlier execution applications. As it is admitted in the ease that the prayers for sale of mortgaged properties were included in the earlier applications we are of opinion that this argument also does not save the Appellant from the liability of his properties being put to sale for purpose of discharging the obligation under the decree of the Aurangaba Court Accordingly we disallow the objections and dismiss the appeal with costs.

Shripatraq Palnitkar, J.

I agree.

Aganmohan Reddy, J.

I agree with my learned brothers in the conclusion they have arrived at, viz. that the Court executing the decree in this case cannot go behind the decree. u/s 47, CPC the executing Court can determine between parties or heir representatives matters relating to execution discharge, or satisfaction of the decree. Neither in the Hyderabad CPC nor in the Indian CPC is there any provision specifically entitling the executing Court to enquire into the question whether the Civil Court which passed the decree had jurisdiction to do so or not. The objections relating to jurisdiction which are generally raised before the executing Court can be broadly classified as under:

(a) The decree of the Civil Court is a nullity either by reason of some inherent defect of jurisdiction of the civil Court to pass it or otherwise;

(b) The Court passing the decree has no territorial or pecuniary jurisdiction as specified in the CPC This may arise in two ways either:

(i) With respect to a suit being instituted in a Court which has no territorial jurisdiction over it but no objection has been raised by the Defendant with respect to want of jurisdiction and a decree is passed thereon; or

(ii) with respect to a decree passed by a Court which was competent to pass it but after it is passed the territory with reference to which the suit was filed is transferred to the jurisdiction of another Court but that Court which passed it nisevertheless proceeds to execute the decree against properties in the territory of the Court to which it is transferred, and the judgment-debtor does not object to the jurisdiction at the earliest possible moment during the execution proceedings.

With respect to objection (a) above, if the decree is a nullity the executing Court can refuse to execute it. With respect to (b) there is authority for the proposition that the Defendant''s inactivity in not raising any objection to the territorial or pecuniary jurisdiction in the Court of the first instance precludes him from objecting to the jurisdiction in execution proceedings.

The general principle is that the jurisdiction of the Court executing a decree must be determined with reference to the directions contained in the decree. An executing Court cannot go behind the decree and has no power to question the legality and correctness of the decree. The basis of this salutary principle is that the proceeding to enforce a judgment is collateral to the judgment or in other words any objection as to jurisdiction could be raised in the main suit it self before the Court which passed the decree, where the question of jurisdiction of the Court to try the suit, could, by reason of it being a mixed Question of fact and law, be determined on a consideration of the oral and documentary evidence. The place where the cause of action arose, where a contract has been broken or other similar objections relating to the place of suing will have to be determined by the Court in which the suit was filed and if the Defendant does not taken any objection with respect to these matters and is precluded by reason of Section 21 from urging it in appeal or revision he could not be allowed to urge similar objections as to jurisdiction in execution proceedings.

The ''raison d'' etre'' is that the provisions of Section 21, CPC apply to all objections based on the alleged infringement of the provisions of Sections 16 to 18, CPC which deal with the forum or the proper place where the Plaintiff is required to institute his suit relating to immovable property, and if no objection has been taken in the main suit itself, it cannot be allowed to be taken at the time of the execution of the decree. Sections 15 to 20 contain a direction to a suitor and not to the Court and do not purport to deal with inherent or general jurisdiction of a particular Court or purport to deprive any such Court of its jurisdiction in the event of their non-compliance.

Most of the High Courts in India are of the view that the question of territorial or pecuniary jurisdiction of the Court which passed the decree, should not be allowed to be raised in execution proceedings before it but that question as to jurisdiction of the Court in other matters rendering the decree a nullity should be entertained even by an executing Court.

11a. It has further been held by several High Courts that the executing Court cannot question the jurisdiction of the Court which passed the decree and which has been transferred to it for execution particularly in view of the fact that the words "or of the jurisdiction of the Court which passed it", which occurred in Section 225 of the Old CPC have since been omitted from the corresponding provision in Order 21, Rule 7 of the present CPC and the result of such omission is that the transferee Court cannot question the jurisdiction of the transferor Court which passed the decree.

Most of the cases which appeared to be authority for the proposition that the executing Court can entertain questions of jurisdiction are cases where the decree has been passed against dead persons--Radha Prasad Singh v. Lal Sahib Rai 13 All 53 (PC) (M), or for the sale of the lands which are not saleable under any of the special provisions of law for the time being in force--Katwari v. Sitaram Tewari AIR 1921 All 1118 (FB) (N), or in an arbitration proceeding under the Indian Arbitration Act under which no decree can be passed at all--Firm Shingo-mal Ponumal v. Khushaldas Lekhraj Firm AIR 1940 Sind 150 at pp. 152 and 153 (O), or against a minor not represented in a suit- The Maharajah of Jeypore Vs. Sobha Sundar Dalai and Another, . In all such cases it may be possible for the Court to go behind the decree but what in effect it is doing is to stay its hand, without an enquiry into the question of jurisdiction of the Court which passed the decree being involved, or it may be distinguished in the same manner as has been done by Davis, C.J., in '' AIR 1940 Sind 150 (O)'', where he observed at page 152 that:

A distinction between decrees which are nullities apart from a question of jurisdiction and other decrees, is a surer guide in this matter, than a distinction drawn between what is called the absence of inherent jurisdiction and irregularities in the exercise of jurisdiction.

The case of ''38 DLR 455 (A)'' and a number of other authorities of the Hyderabad High Court referred therein as well as the instant case arise out of decrees passed on private arbitration awards and it may be urged that Section 21 has no application thereto; as such this is a ease of want of inherent jurisdiction which makes the decree a nullity. I am unable to see how it can fee said that merely because Section 21, CPC or Section 16, Hyderabad CPC is inapplicable to such cases, it is a question of want of inherent [Jurisdiction. Section 559, Hyderabad CPC corresponding to Para 20, Schedule II, CPC enjoins that private arbitration awards should be filed in such Court which had jurisdiction over the subject-matter of dispute in the award.

This provision is similar to the provision in Section 16, CPC corresponding to Section 11, Hyderabad CPC as such Section 21, of the CPC or Section 16 of the Hyderabad CPC can be invoked by analogy or at any rate on the ground that the aforesaid provisions relating to the place of suing do not deprive a particular Court of its jurisdiction in the event of their non-compliance. In any case, we have to deal with the question in its general application to cases, whether of decrees passed on suits or on awards, where he who having an opportunity to raise an objection as to jurisdiction or having an appeal and a special appeal pertaining to it, has not availed himsen of it. I do not propose, to examine the numerous cases dealing with every aspect of defect of jurisdiction except in so far as it is necessary for the purposes of this case.

The pronouncements of their Lordships of the Privy Council where they have held that the executing Courts can go into a question of jurisdiction are in cases where the decree was a nullity for want of inherent jurisdiction arising out of the subject-matter of the suit being outside British India to which the provisions of the CPC had no application. Both in the case of--Setrucharlu Rambhadra Raju v. Maharaja of Jaypur AIR 1919 PC 150 (Q), cited by Wallis J in the Pull Bench judgment in--''AIR 1920 Mad 1019 (G)'', and in the case of--''Ramlal Harigopal v. Kishanchandra AIR 1924 PC 95 (R) cited by Manohar Pershad & Siadat Ali Khan JJ. in 38 DLR 455 (A) the question relating to jurisdiction arose because the decrees dealt with immovable properties situated in a place to which the CPC was not applicable and the Courts which passed the decree had no inherent Jurisdiction to pass any such decree pertaining to the said property.

In another case, that of- AIR 1933 61 (Privy Council) where in an appeal from the judgment of the Calcutta High Court in-- Rabindra Nath Chakravarthi Vs. Jnanendra, Mohan Bhaduri and Others, '', the Privy Council held that though the decree was made without jurisdiction as the Indian Arbitration Act, 1899, contains no such provision as that contained in CPC Sch. II, Article 21 for making a decree upon an award, it was within the discretion of the High Court to treat the application as one to execute the award, as by Section 13 of the said Arbitration Act it was enforceable as a decree. Sir Dinshah Mulla observed at page 62:

If therefore there was an existing award in favour of the Respondent the objection to his application was one of form only and not of substance and their Lordships think that it would be in the discretion of the High Court to treat it in the way they did.

From this observation it has been said that their Lordships decided by necessary implication that the question of the validity of the decree to be executed and the jurisdiction of the Court could be enquired into in execution proceedings. There is in my view nothing to warrant this inference in the decision of their Lordships of the Privy Council. There is, however, no doubt that it is only where the decree is a nullity, a mere nothing--a coram rum fudice--that the executing Court can refuse to execute it.

In the Calcutta Full Bench case in Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, , it was held that where a decree presented for execution was made by as Court which apparently had no jurisdiction whether pecuniary or territorial or in respect at the judgment-debtor''s person to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. This judgment has not considered the effect of Sections 21, 38, 47 or Order 21, Rule 7, CPC relating to the power of the executing. Court vis-a-vis the question of jurisdiction. The correct-ness of this decision has been doubted in a sub-sequent judgment of the same Court to Kallcharan v. Bibhuti Bhushan AIR 1933 Cal 35 (S), It has also not been followed by other High Courts after a full consideration. The only case that follows this case as far as I can find, is--Asmatullah v. Forbes, Forbes Campbell and Co. Ltd. AIR 1934 Lah 652 (T), but as I have dissented from the view taken in-- Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, '', this case need not be further considered. At any rate the view expressed by Walmsley, J., in-- Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, , is, with great respect, against the current and weight of authority in India and cannot be followed.

Inasmuch as a Division Bench of this High Court in ''38 DLR 455 (A)'', has held that an executing Court can go into the question of a decree being passed by a Court not having jurisdiction to do so, the case has been referred to this Full Bench, particularly also in view of the divergent views taken by the other High Courts which required consideration after the integration of this State with the Republic of India. In the aforesaid case it appears that a private award mortgaging certain properties to Elareddiguda was filed in the City Court which passed a decree thereon. The decree was transferred to the Court of the District Judge of Bhailolkhanguda thereafter for execution, when it was contended that the City Civil Court had no jurisdiction to pass a decree with respect to Pro-perties situated outside the jurisdiction. After considering the several decisions of this High Court in 18 DLR 119 (U)--Mahomed Din Umar v. Raghavalu 28 DLR 481 (V)--Harkrishen v. Safdarunnissa Begum 29 DLR 529 (JC) (W);--In the case of Ahmed Mubarak Ali 32 DLR 279 (X);--Gulabchand v. Gulam Dastagir 34 DLR 239 (Y);--''30 DLR 244 (J.C.) (Z)'', as well as decisions of what were then the British India High Courts in 1930 Cal 1019 (sic) (AIR 1920 Mad 1019 (G);--S.A. Nathan v. S.R. Samson AIR 1931 Rang 252 (FB) (Z1); AIR 1940 Sind 150 (O), the learned Judges of the Division Bench held that the view of this High Court has been that if the decree is a nullity, no separate proceedings need be taken to set it aside because it is as good as a scrap of paper; as such their Lordships refused to follow the decision of the British Indian High Courts which took a contrary view.

The case of--Gunda Eramma v. Abdulls Bin 18 DLR 129 (FB) (Z2), was not one which involved a question of want of pecuniary or territorial jurisdiction. It dealt with a compromise decree pledging the salary of a Government servant which could not be legally attached. The question which arose for determination was whether a separate proceeding should be instituted to set aside the decree or whether such a decree was ''ab initio'' void. This did not involve a question as to whether the provision analogous to Section 21 of Indian CPC has any application. The case is one where the executing Court was held fly two of the learned Judges of the Full Bench have been justified in refusing to attach the salary of a Government servant in view of the legal prohibition against it and also because the decree passed was a void one. Nawab Akbar Yar Jung who dissented from that view held that it is the duty of the executing Court to enforce the orders in the decree despite legal objections of any kind being raised because the decree was final and binding between the parties. He further held that the executing Court was not competent to challenge the validity or correctness of the decree. The majority view, it may be noted, was not based ''on a consideration or the application of Section 16, Hyderabad CPC corresponding to Section 21 of the Indian CPC nor was it a case where ''the decree was said to suffer from a defect of territorial jurisdiction.

In 28 DLB 431 (V), a decree was passed by the City Civil Court on a private award relating to properties situated outside the jurisdiction of the City Civil Court. The City Civil Court at first ordered possession of certain properties to be delivered to the decree-holder and after the possession of these properties was delivered, on an objection petition of a third party who contended (a) that the City Civil Court had no jurisdiction to pass a decree, (b) that for the purposes of issuing an order for possession of properties no order u/s 260, Hyderabad CPC corresponding to Section 46, Indian CPC could be passed, order-led the restoration of these properties by ejecting ,the decree-holder there from Nawab Akbar Yar Jung and Venkata Laxman Reddy, JJ., held that the lower Court was right in restoring possession to the third person while observing that the City Civil Court had no jurisdiction to pass a decree on a private arbitration award dealing with properties over which the Court had no jurisdiction as required by Section 559, Hyderabad CPC corresponding to paragraph 20, Schedule II, Code of Civil Procedure. They further stated that it was not necessary for them to consider this aspect of the case in any detail, for even if the case was a valid and binding one, since it is one for possession it should be transferred u/s 251(c), Hyderabad CPC to the Court within whose jurisdiction the properties are situated and as it was not transferred the lower Court was right in restoring possession of the property to the third parties.

In ''32 DLR 279 (X)'', the question was whether the executing Court can examine the judgment of the Court passing a decree which refused to execute it because the judgment was wrongly decided. It was held that the executing Court had no power to question the validity of the decree unless it was ab initio void by reason of the Court passing the decree having no jurisdiction, and that it would be wrong for one Court to give a decree and for the other Court which is merely an executing Court to refuse to do so. The case is an authority for the proposition that the executing Court cannot go behind the decree when was not a void decree.

The case of ''34 DLR 239 (Y)'', as far as I am able to ascertain, did not deal with the power of an executing Court to challenge the validity of a decree granted by a Court not having jurisdiction to pass it. In an appeal from the decree made on the basis of a private award the question that was considered was whether the Court had jurisdiction to pass a decree on an award which dealt with the properties situated outside the jurisdiction of the Court granting the decree. This the appellate Court was always entitled to consider; as such the case does not assist in any way.

I now come to the two decisions of the State Judicial Committee in--29 DLR 529 (W) and--Abdul Majeed v. Saleh Bin Yehi 30 DLR 243 (Z3).

The case in ''29 DLR 529 (LC)(W)'', dealt with the power of the Courts u/s 236 of the Hyderabad CPC to grant interest-prior to the suit and during the pendency of the suit. Their Lordships of the State Judicial Committee after referring to the Pull Bench cases of the former British Indian High Courts in Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, ;-- Mahabir Singh Vs. Narain Tewari and Others ;--Siv Bahadur Lal v. Makarund Singh 155 JC 759 (Z5) and--Murlidhar Srinivas v. Gorakh Ram Sadhu Ram 161 JC 877 (Z6), made certain observations at P. 534 of which give an English translation below:

The principle to be deduced from the aforesaid decisions, and this is the principle which should be held decided, is that if the decree is void, which means that its existence is as good as non-existence, in such a case the Court executing the decree has the power to refuse to execute it, for otherwise the executing Court will have the power to refuse to execute every wrong decree even though the provisions of the CPC make it evident that if there is any mistake in the decree it could be rectified by filing an appeal or review. And this is what is intended to be inherent in specifying the powers of an execution Court so that the decree can be maintained.

It would be apparent from an examination of the authorities of British Indian High Courts cited in--''29 DLR 529 (JC)(W)'', that most of them support the view that unless the decree is ''void the executing Court cannot go behind it and refuse to execute it because the ordinary way of questioning a decree passed without jurisdiction is in appeal or in revision and if this'' is forbidden no Court of first instance can in execution do that which the appellate or revisional Court is precluded from doing.

The Full Bench of the Rangoon High Court in ''AIR 1931 Rang 252 (Z1)'', has held that a subsisting decree passed by a duly constituted Court that has not been set aside in proceedings by way of appeal, revision, review or otherwise by due process or law, is not to be treated as a mere nullity, but is binding and conclusive against the parties thereto duly impleaded in the suit. A Court to which such a decree has been transferred for execution must take the decree as it stands and is not entitled to question the validity of the decree upon the ground that the Court passing the decree had no jurisdiction, territorial, personal, or pecuniary to pass it. It has gone even to the extent of holding that a decree passed without inherent jurisdiction can be declared ''ab initio'' null and void if proceedings in that behalf are taken as provided by law but if the parties fail to take such proceedings the executing Court cannot challenge the validity of the decree. , ''

In ''30 DLR 243 (Z3)'', the questions which arose for determination were whether the Original Side of the High Court had jurisdiction to hear a case which according to Act 2 of 1324 F. had to be instituted in the Dar-ul-Qaza Court which was a court for Muslim parties and whether any question relating to the jurisdiction of the Court which passed the decree could be entertained by an executing Court. Their Lordships after stating that there were conflicting cases in the Indian High Courts observed that:

Those cases should be followed which have decided that it was not right for the executing Court to go into a question of the jurisdiction of the Court passing a decree and held that such a decree cannot be executed, because if this principle is not accepted then the executing Courts have to refuse to execute such decrees in such circumstances where objections as to limitation and jurisdiction have been in fact taken before the Courts granting decrees, but in spite of it decrees have been passed.

In this way objections of many kinds can be taken as to the want of jurisdiction by the Court passing the decree, and the Court in spite of these objections has passed the decree and if the executing Court is to be vested with a decision on such objection, it would tantamount to constitute an executing Court, court of appeal over the Court passing the decree; & it is not the intention of the law to give such wide powers to the executing Court. The objection as to jurisdiction should have been taken in the Court of first instance, and if having the opportunity of taking it, it was not taken such an objection cannot be allowed to be taken in an executing Court after the decree has been made. (English translation).

This judgment was distinguished in ''38 DLR 455 (A)'' and the observations were considered obiter, but in my view whether these observations are obiter or not they are entitled to great weight, particularly when they are consistent with the current authorities of the majority of the Indian High Courts.

As I have already stated, the noncompliance of the provisions relating to the territorial jurisdiction is in no way fatal to the jurisdiction of this Court so as to render the decree passed by a Court of competent jurisdiction a nullity. It may be pertinent to cite the observations of Mahajan J., as he then was, in AIR 1946 Lah 57 (L), where he very tersely observed page 60:

The question of territorial jurisdiction of a Court is not a question of inherent jurisdiction. An objection as regards the territorial jurisdiction of a Court can be waived by a party but if it is not raised at the earlier stages of the case it cannot be raised in a Court of appeal; see in this connection the provisions of Section 21, CPC and Section 99 of the same Code. The judgment or decree of a Court having no territorial jurisdiction over the subject-matter of a suit is not a nullity but is a judgment of a competent Court.

Although that was a case where according to the contract between the parties a suit relating to disputes arising out of it could be filed in one only out of two Courts having jurisdiction, the question whether territorial jurisdiction of a Court was inherent jurisdiction fell for decision.

The case in ''AIR 1940 Sind 150 (O)'', was a case on an award, similar to this case where the award was filed with the consent of the parties before the District Court and more than two years after the Appellants filed objections to it on the ground that as the subject-matter of the award was not within the territorial jurisdiction of the District Court, the award was a nullity as the Court in filing it had acted without jurisdiction.

After an exhaustive review of all the case law on the point, it was held that an executing Court cannot go behind an award filed in Court with the consent of the parties and question its validity when on the face of it it is not a nullity even if the Court filing it had no territorial jurisdiction. An executing Court can enquire into and decide that a decree is a nullity not on the ground of jurisdiction but because the decree passed is not a decree at all.

I have tried to show from a review of the case law of the pre-Constitution High Court of this State that the view which it is said to have taken as to the power of the executing court to enquire into the question of pecuniary or territorial jurisdiction of the court passing the decree and refusing to execute it does not appear to be justified by the facts which fell for determination in a few of those cases. To my mind, it is clearly not open to the executing court to go into''; the question of jurisdiction which it must be taken to have been impliedly decided by the court passing the decree. As long as the decree stands unreversed it is effective unless it is a nullity being ''ab initio'' void, otherwise the order which is beyond the jurisdiction should be set aside by proceedings taken to achieve that end this cannot be allowed to be canvassed in a collateral enquiry. If the judgment-debtor who had a right to object to the jurisdiction before the decree was passed on the award and to go in appeal or revision against any adverse decision has not availed himself of these remedies, he will be deemed to have renounced his right to do so at the very outset, ''renuncaiavit juri pro se intro-ducto''.

I also agree with the conclusion of my learned brothers that the execution petition is not barred by limitation. In the result the appeal is dismissed with costs.