P L D 1968 Lahore 144 (PLP)

Mahbub Hussain v. Anjuman Imdad Qarza A I R 1942 Lah. 129 ref. and dissented from. Islamic Republic of Pakistan v. Muhammad Saeed P L D 1961 S C 192; Ahmad & Co. v. Muhammad Siddique P L D 1965 Kar. 293 and Zamindar of Ettiyapuram v. Chidambaram Chesty A I R 1920 Mad. 1019 ref. Sh. Ahmad Saeed for Petitioner. Rashid Masood for Respondent. Date of hearing: 11th April 1967. The conciliation Court by its order dated the 18th of September 1964 passed a decree against the petitioner for the payment of a sum of Rs. 225.00 and directed that the petitioner will pay the amount in instalments of Rs. 40.00 per month. On the failure of the petitioner to pay this amount, the respondent applied for the execution of the decree. The petitioner also applied under section 47 of the Code of Civil Procedure that the decree was not capable of execution because it was obtained by fraud and that the conciliation Court had no jurisdiction in the matter. The objections were over‑ruled by the learned Civil Judge. The petitioner has now filed this revision petition.

2. The conciliation Court passed a consent decree against the petitioner. On his behalf, Abdur Rashid appeared and consented to the passing of the decree and prayed that the payment should be ordered through instalments. The learned counsel contends that Abdur Rashid was not the attorney of the petitioner and that the decree has been obtained by fraud. He wanted to have the execution of the decree avoided on this plea.

3. The executing Court cannot go beyond the decree and it must take the decree as it stands, for the decree is binding and conclusive between the parties. It is not competent for the executing Court to enter into a criticism of decree. It cannot also take notice of the plea of fraud in the executing proceedings. In Pravata v. Digambar (I L R 15 Bom. 307), it was held that it was not open to the judgment‑debtors to raise the defence of fraud in the course of the execution proceedings. In Sudindra v. Budan (I L R 9 Mad. 80), the view taken was: "A question whether the decree was obtained by fraud or collusion is not one which relates to the execution of the degree, but which affects its very subsistence and validity. Such a question can only be raised by a separate suit." In Muhammad Saeed v. Yasin (P L D 1966 Kar. 308), it has recently been held that a question whether a decree was obtained by fraud or collusion is not one which relates to the execution of the decree but one which affects its very subsistence and validity and such a question can only be raised by a separate suit. The same view was taken earlier in Ahmad & Co. v. Muhammad Siddique (P L D 1965 Kar. 293) and it was observed that the executing Court has no power to entertain an objection as to the validity of the decree upon the ground that it was obtained by fraud.

4. It was next contended that the decree passed by the conciliation Court was without jurisdiction. Under clause (1) of section 6 of the Conciliation Courts Ordinance, 1961: "Subject to the provision of subsection (2), a conciliation Court shall be constituted and shall have jurisdiction to try a case only when the parties to the dispute ordinarily reside within the limits of the Union in which the offence "has been committed or the cause of action has arisen." Learned counsel for the petitioner contends that neither the petitioner nor the respondent resided within the limits of Civil Lines Union Committee, Ward No. 29, Lahore. The case of the respondent is that the cause of action arose within the jurisdiction of the aforesaid Union Committee. The learned counsel for the petitioner contends that if the executing Court had afforded him an opportunity, he would have proved by evidence that the cause of action did not arise within the jurisdiction of the Union Committee. The question, however, arises whether it is competent for the executing Court to adjudicate on the question of the jurisdiction of the Court which passed the decree. Reliance was placed on behalf of the petitioner on Mahbub Hussain v. Anjuman Imdad Qarza (A I R 1942 Lah. 129), where it was held: "The executing Court can always decide whether the Court which passed the decree had or had not inherent jurisdiction to pass the decree in question." It was further observed: "This question appears to me always to involve a certain enquiry, however limited the scope of that enquiry may be Similarly, if a decree is held to be without pecuniary or territorial jurisdiction, there must be some evidence apart from the decree as to whether the Court that passed the decree had or had not pecuniary or territorial jurisdiction to pass the decree. Such questions cannot as a rule be solved merely by looking at the decree as it stands. Some kind of enquiry however limited in scope is obviously necessary." He also relied on Islamic Republic of Pakistan v. Muhammad Saeed (P L D 1961 S C 192), where it was held: " . . . . even in execution proceedings questions relating to the executability of an order or decree can be raised and it is open to the party against whom it is sought to be executed to slow that it is null and void or had been made without jurisdiction or that it is incapable of execution." It is now well established that the validity of a decree ea be challenged in execution proceedings 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 or that the defendant was dead at the time the suit had been instituted '6 or decree passed, or some sack 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. In Ahmad & Co. v. Muhammad Siddique it was held: "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." An objection relating to the territorial jurisdiction of the Court is not one which is inherent in the Court. If the Court has not the territorial jurisdiction but is not precluded to try the suit on the ground that it had no jurisdiction in the case on account of the subject‑matter or the persons who are parties in the case, or because of the value of the suit, it does not lack in inherent jurisdiction. A provision in a statute for territorial jurisdiction contains a direction to a suit or and not to the Court and does 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 its non‑compliance. It is for this reason that in section 21 of the Code of Civil Procedure it is clearly provided: "No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice." The failure to take objection as to the territorial jurisdiction is cured by section

21. An objection as to the place where the cause of action arose, where a contract has been broken, or other similar objections relating to the place of using, are to be determined by the Court in which the suit is filed and if the defendant does not take any objection with respect to these matters and is precluded from urging it in appeal or revision, he cannot be allowed to urge similar objections as to jurisdiction in execution proceedings. In Zamindar of Ettiyapuram v. Chidambaram Chetty (A I R 1920 Mad. 1019). it was held: "The effect of the section, in my opinion, is that objections which the appellate Dr 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." It was argued that there is no provision like section 21 in the Conciliation Courts Ordinance. It is so, but that should not make any difference. The provisions of section 21 of the Code are based on principles of common law and even if there is no express provision in the Ordinance they can always be pressed into service, unless there is a provision to the contrary. In Mahbub Hussain v. Anjuman Imdad Qarza, the objection was about the inherent and not the territorial jurisdiction. Such an objection can be taken. As regards the observations made in that case that an enquiry can also be held in execution proceedings into the territorial jurisdiction of the Court, with profound respects, I am unable to agree. The learned Judges in that case did rot take into consideration the provisions contained in section 21 and also they failed to notice that territorial jurisdiction has nothing to do with the inherent jurisdiction of the Court. Since in the instant case, the petitioner did not take up objection to the jurisdiction of the conciliation Court before that Court, he was precluded to raise this objection in the execution proceedings.

5. The order passed by the executing Court is unexception able. The petition has no merit and is accordingly dismissed. There shall be no order as to costs. A.H. Petition dismissed.