P L D 1966 (W (PLP)

(b) Civil Procedure Code (V of 1908)

S. 20 (c)‑Court has jurisdiction to entertain suit based on cause of action partly arising within local limits of its jurisdiction. Sm. Tusliman Bibi v. Abdul Latif Mia A I R 1936 Cal. 97 ; Tagniram Premsubh v. Ganpati Damaji and others A I R 1941 Nag. 36 and Seth Wadhumal v. Malik Noor Ahmed A I R 1933 Sind. 179 ref. (c) Civil Procedure Code (V of 1908)

S. 47‑Validity of decree‑Question whether decree obtained by fraud‑Cannot be gone into by Court executing decree. Naimuddin for Plaintiff. A. Aziz M. Dastagir for Respondents. Date of hearing: 18th January 1965. Objections taken by judgment‑debtor No. 2 (S. Allahbux & Sons) to the execution of ex parte decree passed against him and one other (Yasin) on 16th May 1957, are that this Court had no jurisdiction, secondly that assignment deed executed betty n the decree‑holder and judgment‑debtor No. 1 is fraudulent, collusive and without notice of assignment to him, and, lastly, that a decree passed by this Court is void ab initio. Initial objection raised on behalf of the decree‑holder to these objections is that under section 47, C. P. C. such objections cannot be raised at this stage. Under section 38, C. P. C. a decree could be executed either by the Court which passed it or by the Court to which it is sent for execution. It has been held by various High Courts that an executing Court cannot go behind the decree, Le. the jurisdiction of the Court executing a decree must be determined with reference to it and is circumscribed by the directions contained in the decree. It has no power to go behind it or question its legality or correctness. And it is based on the principles that a proceeding to enforce a judgment is collateral to the judgment, and, therefore, no inquiry into its regularity or validity can be permitted in such a proceeding. It, therefore, follows that the executing Court must execute the decree as it stands and according to its terms. As already pointed out that a decree could be executed by a Court which passed it or to a Court to which it is sent for execution. It has now been held that a transferee Court cannot question the jurisdiction of the transferor Court which passed the decree. Similarly a question of territorial or pecuniary jurisdiction of the Court which passed the decree cannot be allowed in execution proceedings before it unless it is shown that objection to the jurisdiction of the Court would make the decree a nullity. In this particular case it was urged on behalf of the judgment‑debtor No. 2 that this Court had no territorial jurisdiction as he actually resides and carries on business and personally works for gain at Lahore. Thus Lahore Court only had territorial jurisdiction to try this suit against him. When this suit was filed in 1952 this Court was the Chief Court of Sind and as such the conditions or restrictions laid down under sections 16, 17 and 20, C. P. C. applied to it. It was converted into High Court before the suit was decreed on 16‑6‑1957. In view of this position section 120, C. P. C. did not apply when the suit was filed in 1952. Section 120 lays down that "the provision of sections 16, 17 and 20, C. P. C. shall not apply to the High Court in the exercise of its original civil jurisdiction". Sections 15 to 20, C. P. C. refer to place of suing and mention the restrictions or limitations regarding the territorial jurisdiction of Civil Courts. Under section 15 every suit must be instituted in the lowest Court competent to try it, while section 16 deals with property, i.e. suit must be instituted where the subject‑matter is situated. Section 17 refers to suits for immovable property and section 18 deals with cases where place of institution of a suit where local limits of jurisdiction of Court are uncertain. Every suit to be instituted where the defendant resides or cause of action arises under section 15. I agree with the judgment‑debtor No. 2 that in view of section 120, C. P. C. conditions or restrictions laid down under sections 16, 17 and 20, C. P. C. did not apply to the facts of the case when it was filed in 1952 as this Court was then the Chief Court of Sind. But section 21 lays down "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". In this particular case the parusal of the written statement filed by judgment‑debtor No. 2 shows that he had raised objection to the jurisdiction of this Court. Lastly there is section 47, C. P. C. which deals with questions to be determined by the Court executing a decree. It clearly lays down that all questions relating to the execution, discharge or satisfac tion of the decree must be determined by an execution Court and not by a separate suit. I have already referred to the provisions of section 38, C. P. C. in this connection. The object of section 47, C. P. C. is to check and avoid endless litigation and with this view it enables the parties to obtain adjudication of questions relating to execution without unnecessary expenses or ,4 delay with a fresh trial. It deals with the enforcement of judgments and lays down that questions specified in it shall be tried in execution and not by a separate suit. When its object is to accord relief to the parties finally, cheaply and speedily without the necessity of a fresh suit, it must be construed as liberally as the language would reasonably admit of. Reading all these sections viz: 21, 38, 47, C. P. C. together it is abundantly evident that where there are patent reasons for doubting the jurisdiction of the Court that passed the decree, namely, a decree which will be void on account of total lack of jurisdiction, the executing Court is competent to hold an inquiry to decide that a decree is a nullity and incapable of execution Sind Provincial Co‑operative Wholesale Society v. Abdu Weavers Co‑operative Society (P L D 1960 Kar. 946). In this particular case the suit was filed in this Court as part of cause B of action had arisen within the jurisdiction of this Court, i.e. in view of section 20(c), C.P.C. In support of his argument the decree‑1 holder had relied upon the decisions reported in Sm. Tusliman Bibi v. Abdul Latif Mia (A I R 1936 Cal. 97), Tangiram Premsubh v. Ganpati Damaji and another (A I R 1941 Nag. 36), Seth Wadhumal v. Malik Noor Ahmad (A I R 1933 Sind 179) and Australasia Bank v. Messrs National Imperial Foundry and another (P L D 1952 Lah. 45). As a result of all this discussion I hold that these objections could lie but in view of the position, i.e. section 20 (c), C. P. C. I hold that this Court had jurisdiction to try this suit. This objection accordingly fails. I now come to the next objection, i.e. decree was obtained by fraud. This is a vague allegation as particulars of fraud are not given by judgment‑debtor No. 2. Apart from this fact the question whether a decree was obtained by fraud or collusion is' not one which relates to the execution of the decree but one which gives its very subsistence and validity and such a question can only be raised by a separate suit. In view of these reasons this objection is also rejected. Lastly it was urged before me that no notice of assignment was served upon him. This objection was not raised by him in his written statement. He resiled from this position and argued that the notice served upon him does not mention his address and as such it is invalid in view of the provisions of section 131, Transfer of Property Act which lays down that "Every notice of transfer of actionable claim must be in writing and shall state the name and address of the transferee." I have seen the notice served upon the judgment‑debtor. This notice was served upon the judgment‑debtor by Mr. Nathulal, Advocate on behalf of the decree‑holder. Judgment‑debtor is described as 5. Allahbux & Sons at Lahore. Decree‑holder is mentioned as Muhammad Saeed son of Shaikh Abdul Rehman and he is transferee of the actionable claim. The address of the advocate is also mentioned. Thus it cannot be argued that the address of the transferee is not mentioned in the notice. I, therefore, dismiss this objection also. All objections have been dismissed. Writ of attachment to issue on payment of costs as prayed under Order XXI, rule 52, Civil Procedure Code. K.B.A. Order accordingly.