P L D 1965 (W (PLP)

2. The material facts are these:‑--A decree was passed in this suit for Rs. 1,76,50;. and costs, etc. by this Court on 2‑4‑

59. The defendants filed a Letters Patent appeal being L. P. A. No. 20/59 which was compromised between the parties and a decree in terms of the compromise was passed by the Division Bench on 10‑11‑59 for Rs. 1,60,000 at 6 % interest and costs. The judgment debtors paid in all Rs. 1,03,988.51 towards the satisfaction of this decree. This is the amount which is admitted by the decree holders. It is the case of defendants judgment‑debtors that they learnt on 15th December 1960 that the decree had been obtained by fraud by the plaintiffs. Having come to know of this they filed a suit in the Court of the VII Civil Judge, Karachi being Suit No. 2696/60 for the setting aside of the decree passed by this Court on the ground that it was obtained by fraud. An ad interim injunction was obtained by the judgment‑debtors restraining the decree‑holders from executing the decree. This order was obtained on 20th December 1960 but the summons and notice of the injunction application were not served on the decree‑holders until August 1961. The decree‑holders then appeared and filed an application under Order VII, rule 10, C. P. C. stating that the Court had no jurisdiction to try the suit. This objection was upheld by the learned Civil Judge by his order dated 20th August 1962 and he returned the plaint to the plaintiffs for presentation to the proper Court. The judgment‑debtors without obtaining the original plaint back filed another plaint in the same Court calling it as an amended plaint and moved a fresh application for an interim injunction and the Court thereupon ordered the status quo to be maintained. The decree‑holders appeared and objected to the entertainment of this "amended plaint" and the Court rejected it by its order dated 12th November 1962. The decree‑holders then filed the present execution application in this Court. The judgment debtors without getting notice of this application moved an application on 24‑11‑62 in this Court asking for notice of this execution application and stating that they had filed a fresh suit in this Court on 23‑I1‑

62. There is nothing to show us as to what happened to this suit and whether it was filed. However, on 12‑12‑62 the judgment‑debtors filed a revision application being R. A. No. 600/62 against the order of the Civil Judge dated 20th August 1962, whereby he had returned the plaint for presentation to the proper Court upon the ground of absence of pecuniary jurisdiction and also obtained an interim injunction in that revision application on 14‑12‑

62. It was not disclosed in this revision application that the execution proceedings were already pending in this Court. This revision application came up for hearing on 6‑11‑63 and upon objections taken by the decree‑holders that this application was incompetent the learned Advocate for the judgment‑debtors Mr. S. H. Rizvi conceded that this revision application was not maintainable and that he should have filed an appeal. He did not press the revision application which was accordingly dismissed, by the order of the Court dated 6‑11‑

63. The decree‑holders then filed an application on 8‑11‑63 in this Court for the issue of the writ of attachment and on that very day the judgment‑debtors filed another suit being Suit No. 479/63 in the Court of another Civil Judge, namely II‑Civil Judge, First Class, Karachi upon the same cause of action which was the subject‑matter of the earlier Suit No. 2696/63 of the Court of the VII‑Civil Judge. Along with the suit the judgment‑debtors also applied as usual for ad interim ex parte injunction and got it. The decree‑holders again appeared in this suit and took various legal objections to the maintainability of this suit which the learned Judge after striking a preliminary legal issue and having heard the parties dismissed the suit by his judgment dated 30th March 1964.

3. The decree‑holders then moved a fresh application in this Court for the writ of attachment in the execution proceedings but the judgment‑debtors again put in an application on 6‑4‑64 wanting notice of the decree‑holders application. However, evidently realising the precarious nature of their position in view of the orders passed in the previous two suits in the subordinate Courts, the judgment‑debtors through their Advocate Mr. S. H. Rizvi did an extraordinary thing. On 8‑4‑64 they moved an application in the old Suit No. 2696/63. in the Court of Muhammad Ibrahim, VII‑Civil Judge, First Class, Karachi under Order XXXIX, rules 1 and 2 and Order XLI, rule 5, C. P. C. stating that they had filed an appeal in the Court of the Additional District Judge against the order dated 20th August 1962, which had not yet been heard and that in the meantime the decree‑holders were trying to execute the decree and so they should be restrained from doing so. It may be noted that this order had been passed about 2 years back whereby the plaint was returned on the ground of absence of jurisdiction and yet an ad interim injunction was granted by the learned Civil Judge on the same day, that is 8‑4‑

64. Certain representations were made in the affidavit with regard to the civil revision which had been filed and dismissed by the High Court. It is important to note that no mention in the application or in the accompanying affidavit was made of the fact that only a week back the plaintiffs' Suit No. 479/63 had been dismissed by the II‑Civil Judge First Class, Karachi. The appeal in the Court of the District Judge had been filed on 14‑11‑63 and had been allowed to remain under objection. After obtaining the order of interim injunction from the Court of the VII‑Civil Judge they complied with the objection taken by the office in the appeal before the District Judge and moved an application under section 5 of the Limitation Act for the condonation of delay in filing of the appeal. This appeal was admitted on 9‑4‑64 but the learned Appellate Court refused to grant an interim injunction and instead ordered notice to the decree‑holders for 8th May 1964. It was not disclosed by the learned Advocate that he had already obtained injunction from the Court of VII‑Civil Judge on 8th April 1964. On 8‑5‑64 when the decree holders appeared before the District Judge he heard the decree‑holders and rejected the injunction application. Against this the judgment‑debtors came into revision to this Court which was dismissed summarily on 28‑5‑

64. The execution application of the decree‑holders has now again come up in this Court for consideration.

4. The judgment‑debtors have filed objections under section 47 read with section 151, C. P. C. contending that the decree passed on compromise in the letters patent appeal is a nullity having been obtained by fraud and, therefore, the execution application is not maintainable and should be dismissed. The alleged ground of the fraud briefly stated is that the agreement dated 11th April 1956, between the defendants and the firm of Haji Ahmad & Company upon which the suit was filed and decree obtained could not have been enforced by the plaintiffs because when this suit was filed the old firm had been dissolved and a new firm had been constituted with the same name of Haji Ahmed & Company but with an additional partner. The original partners of the firm were Hajiani Aisha Bai and Haji Ahmad Haji Abdul Latif and to this a third partner was added in the new firm whose name was Yusuf Qasim Pakal. The whole case of fraud is thus based upon the allegation that this new firm was not entitled to sue and enforce the agreement which had been entered into between the defendants and the old firm.

5. The first question which arises for consideration is whether it is open to the executing Court to go behind the decree upon the ground that it was obtained by fraud and thus refuse to execute the decree. Mr. S. H. Rizvi had contended that on application under section 47, C. P. C. the matter can be enquired into and he had taken time to produce authorities in support of his contention. He obtained time for this purpose on the last date but when the case came up for hearing on 28‑8‑64 the judgment‑debtors filed an application for adjournment stating that they had withdrawn the brief from Mr. S. H. Rizvi and they were going to engage Mr. Dingomal. I rejected this application because I had expressly ordered on the last date that no adjournment will be given in this case. Thereupon Muhammad Siddique, the judgment‑debtor when asked stated that he had nothing further to say.

6. It appears to me to be plain that section 47, C. P. C. does not enable the Court to embark upon the inquiry such as is desired in this case by the judgment‑debtors. The question which can be enquired into under section 47 must relate to the execution discharge and satisfaction of the decree. In the present case the validity of the decree is being questioned upon the ground that it was obtained by fraud. That question must be determined by suit and not by objections under section 47, C. P. C. Indeed the judgment‑debtors have realised this position and for the 1st four years have been prosecuting one suit or the other in the subordinate Courts as narrated in the earlier part of this order. The only ground which has been recognised by Courts which can be urged in execution proceedings as regards the validity of the decree is that the Court which passed the decree had no jurisdiction to do so. Such absence of jurisdiction must be inherent. Except in such cases the execution Court has no jurisdiction to go behind the decree. It has no power to entertain an objection as to the validity of the decree upon the' ground that it was obtained by fraud. It was so held by the Madras High Court as far back as 1885 in the case of Sudindra v. Budan (I L R 9 Mad. 80). It was there held:‑-- "Under section 244 (Old Code) the question to be decided in execution are questions relating to the execution, discharge or satisfaction of the decree. A question whether the decree was obtained by fraud or collusion is not one which relates to the execution of the decree, but which affects its very subsistence and validity. Such a question can only be raised by a separate suit." The correctness of this view has never been doubted.

7. In a recent judgment of the Supreme Court of India in the case of Hira Lal Patni v. Sri Kali Nath (A I R 1962 S C (Ind.) 199) in which the question arose whether the objections to the validity of the decree on the ground that the Court which passed it did not have territorial jurisdiction, it was held that‑ "the validity of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizen of the case because the subject‑matter was wholly foreign to its jurisdiction of that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the Court entirely lacking in jurisdiction in respect of the subject‑matter of the suit or over the parties to it." I am in respectful agreement with this view. I, therefore, hold that these objections cannot be entertained in these proceedings under section 47, C. P. C. Reference to section 151, C. P. C. in the application is clearly wrong. Section 151 does not apply. I may add that even on merits the objection that the decree was obtained by fraud is without any substance whatever. The alleged fraud in such a case must be of an extraneous character. What is being alleged is that the plaintiff‑firm which filed the suit was not competent to do so. This is an objection which could be taken in the suit itself and cannot be properly made the ground of attack in a fresh suit for setting aside the decree on the basis of fraud. It may also be pointed out that the decree‑holders have stated in their objection to the application of the judgment‑debtors under section 47, C. P. C. that the firm had been reconstituted by taking in an additional partner and in this process had carried over the rights and liability of the dissolved partnership into the affairs of the new partnership. It was further stated that in any case the two original partners, namely Aisha Bai and Haji Ahmad have at all times ratified all the acts done in connection with the suit and other proceedings relating to the recovery of the amount in the name of Haji Ahmad & Company. It is difficult to see how a suit for setting aside the decree on the ground of fraud on these facts could be entertained.

8. I accordingly dismiss the objections under section 47 read with section 151, C. P. C. filed on behalf of the judgment debtors and order that a writ of attachment shall issue as prayed by the decree‑holders.

9. I cannot part with this case without observing that the judgment‑debtors have been guilty of abuse of the process of the Court in resisting the execution of this decree. This would appear from facts relating to the various proceedings which they took from time to time and in the manner in which they took it. These facts have been set out in the earlier part of the judgment and they are matters of record and are dealt with in detail in the affidavit of Haji Ahmed dated 26‑8‑64 and supported by all the relevant annexures. In fact most of these facts also find place in the objections filed by the judgment‑debtors themselves. A plaintiff who comes to Court and obtains a decree and when that decree becomes final he is entitled to expect that he will be able to collect the fruits of that decree. If, however, in that process he is thwarted and obstructed at every step by vexatious proceedings it is easy to understand the frustration of a decree holder or for that matter any creditor who intends to come to Court to enforce his claim against his debtor. I regret to note that throughout these proceedings which have been referred to in the earlier part of this order Mr. S. H. Rizvi, Advocate has aided the judgment‑debtors and appeared for them. It is true he had done so in a professional capacity but I consider that this is a fit case in which an inquiry should be held to find if he has been guilty of misconduct. I have therefore by a separate proceeding issued notice to him in this regard. K.B.A. Order accordingly.