P L D 1965 (W (PLP)

In Suit No. 461 of 1955 ... ... 12,000.00 In Suit No. 507 of 1955 ... ... 18,000.00 The suits were ultimately compromised on the 28th of February 1961, and taking into consideration the mesne profits that had accrued due it was agreed that the appellant would pay Rs. 1,04,316.00 to the respondents in 72 equal monthly instalments. There was a default clause in the agreement of compromise, in pursuance of which the respondents made an application for execution of the decrees, but on objections raised against it by the present appellant alleging that the terms of the compromise had not been breached, the execution applications were dismissed by Mr. Abdul Kadir I. Kazi on the 24th of January 1962. Thereafter, the respondents made further applications for the execution of the decrees on the allegation that further defaults had taken place in violation of the terms of compromise, in reply to which the appellant made an application under section 47, C. P. C., to which reference has been made above, and it was decided by Mr. Ghulam Kadir N. Kadiri, vide his order dated the 28th of May 1963, against which this appeal has been preferred. The objections which were raised by the appellant in his application under section 47 were (i) that the valuation of each one of the four suits which were jointly compromised was less than Rs. 25,000.00, but that the amount for which they were jointly compromised being Rs. 1,04,316.00 was outside the jurisdiction of the Court; (ii) that the compromise could be effective to the extent of the valuation of the suits only; (iii) that those who were using the premises were not impleaded as parties to the compromise; therefore, the compromise was unlawful; (iv) that the value of the decree being more than Rs. 25,000.00 and the Court which granted it being a Civil Judge of First Class he had no pecuniary jurisdiction to decree the suits according to the compromise; (v) that the premises relating to which the compromise was made had remained unused owing to the litigation; therefore the respondents were not entitled to claim any amount of money with respect to that period; (vi) that the furniture and equipment, etc. which was used in the premises which was being utilised as a hotel was exempt from attachment; and (vii) that the respondents were liable to provide running water and to discharge other obligations, and that as such were not entitled to recover rent.

3. Ch. Abdul Aziz, the appellant and Mr. Castellino agree that the possession of the demised premises is in fact with the respondents now and that the only property which is available for sale to recover the decretal amount is the furniture which has been attached and stored in a godown of the respondents. The purpose of the objections raised by the appellant in these appeals, according to the appellant, is that, in the event of his success in these appeals, he should be able to get the restitution of the demised premises as well as the release of the attached articles, although according to the appellant himself, the liability had been accepted by him in the compromise agreement made by him. His main hope is that his claim which according to him, is pending against the Government may be accepted by the time the litigation is over so that he may be able to clear his liabilities with the money that he may receive from the Government. I give him credit fox the frankness with which he has explained the motive of these appeals but the difficulty in the way of his appeals is created by the position of law, which he must remove by referring to the relevant law in his favour. He stated that he was not able to support these appeals by citing law at present and wanted them to be adjourned to be heard along with four other appeals which, according to him, have been preferred by him and are pending in this Court against some other order of the executing Court. These appeals were filed in 1962, and the appellant could, if he so desired, get them consolidated or fixed for hearing with the other appeals to which he refers. I do not think that there is sufficient reason for adjourning the hearing of these appeals from today's date.

4. Mr. Castellino for the respondent has explained that the suits were within the pecuniary jurisdiction of the Court in which they were instituted and were transferred to a Court that had the jurisdiction to try each one of them. They could have been decreed by that Court and mesne profits could have been calculated and recovered at the time of taking possession of the: premises. After a number of years, the appellant compromised, them and calculating the amounts which had accrued due, agreed to pay the same for which they were decreed jointly. The respondent was called upon to pay court‑fees on the deretal amount and has done so. According to counsel, the trial Court could decree the suits for a higher sum than the pecuniary limit of his jurisdiction, because the excess amount was a consequence of the calculations which were to be made according to the duration for which the suits remained pending. In this connection he has referred to the following passage from Chitaley's Code of Civil Procedure (Ed. VII) Volume 1, at page 105, under section 6 of the Code: "The High Courts of Allahabad, Bombay, Calcutta, Madras, Patna, Madhya Pradesh and Rangoon and the Courts of the Judicial Commissioners in Sind, Nagpur and Oudh have agreed in holding that it (the Court) can (has power to pass decree in excess of its jurisdiction). The reason is, that m every case when the Court is seized of jurisdiction, it cannot and does not lose it by any change in the value of the subject‑matter of the suit after the institution of the suit, or by the precise ascertainment of its value in cases which do not admit of such ascertainment at the time of the institution, except when the plaint if allowed to be amended, and also that otherwise there would be no certainty as to the Court in which a suit should be brought, or as to the Court in which an appeal should be brought." In addition to the above contention, Mr. Castellino has cited Ghulam Muhammad v. Mst. Fazal Nishan (AIR 1932 Lah. 289) and Zamindar of Ettiyapuram v. Chidambaram Chetty (ILR 43 Mad. 63) in which it has been pointed out that an executing Court cannot go behind a decree to entertain an objection to the pecuniary jurisdiction of the Court which granted the decree. This proposition seems to be clear enough.

5. I have noted above all the objections that are contained in the application made by the appellant under section 47, C. P. C. before the Executing Court, but the appellant has, I believe wisely, restricted his objection to the jurisdiction of the Court which granted the decree for Rs. 1,04,

316. That objection, as explained above, is not sustainable.

6. The appeals are, therefore, dismissed with costs. K.B.A. Appeals dismissed.