- (1.) This appeal by special leave arises from the decision of the Allahabad High Court in execution first Appeal No. 26 of 1961 on its file. The appellant is the decree-holder. The contesting respondent is the State Bank of Jaipur-to be hereinafter referred to as the Bank-: other respondents are not interested in the decision in this appeal.
(2.) The material facts of the case are few. The appellant was indebted to the Bank. On March 27, 1959, he executed a power of attorney in favour of the Bank. That power of attorney inter alia recited:- AND WHEREAS I am very heavily indebted to the Bank of Jaipur Limited, Agra Branch and my liability is partly secured by the pledge of my goods and partly by the equitable mortgage of my and my mothers immovable properties with the said Bank; AND WHEREAS a major part of my said liability is unsecured; AND WHEREAS I have agreed to appoint the Bank of Jaipur Ltd. to be my true and lawful attorney to execute the said decree in suit No. 76 of 1949 (with which we are concerned in this appeal) which may ultimately be passed in my said appeal and to do the following acts, deeds, matters and things for me, on my behalf and in my name and to credit to my account the sum or sums which may be realised in execution of or under the said decrees; NOW KNOW YE ALL men and these presents witness that I do hereby irrevocably constitute, nominate and appoint the said Bank of Jaipur Limited, and/or any principal officers and/or any other person or persons that may be appointed by the said Bank of Jaipur Ltd., or its assigns from time to time in this behalf to be my true and lawful attorney for me and on my behalf and in my name to represent me therein and do all acts, deeds, matters and things in connection with the execution of the said decree in the said Agra Suit No. 76 of 1949 and the decree that may be passed in the said appeal that is to say: 1. To proceed in execution of the said decree passed in the said Agra Suit No. 76 of 1949 and to proceed in execution of the decree which may be passed in the said appeal and to realise and recover the decretal amounts. * * * * * "8. To withdraw any amount that may be deposited in the courts at Agra and/ or Allahabad or any court of justice in the said decree and/or in the decree in the said appeal and/or other proceedings in connection with the execution of the said decree or any other order passed or made therein and/or in any Insolvency Court or from the Official Receiver concerning Insolvency of any of the defendants. * * * * *" It may be noted that on the day the power of attorney was executed the decree passed in favour of the appellant in Suit No. 76 of 1949 was under appeal. Subsequently in appeal the same was affirmed. Thereafter the bank levied execution of the decree in question on May 8, 1959. The execution application was filed in the name of the appellant but it was signed by the manager of the Bank as his power of attorney holder. The appellant objected to the execution. He contended that the power in question had been obtained "by false representation and assurance held out to the deponent (appellant) that they (the Bank) would advance large sum of money including for the purchase of John's Mill and improvement of the same and for conducting of the appeal and other business". He further averred in his counter statement "that no sum whatsoever at any time was advanced by the Bank against the security of the aforesaid decree and no sum whatsoever is payable to the Bank against the same. There is no lien of the Bank of any nature whatsoever in the aforesaid decree."
(3.) The objection of the appellant was overruled by the executing court and the execution was directed to proceed. Against that order the appellant unsuccessfully went up in appeal to the High Court. The only question considered by the High Court was whether the power executed in favour of the Bank was a power coupled with interest and hence the same could not be revoked in view of Section 202 of the Indian Contract Act, 1872 (9 of 1872). The High Court answered that question in favour of the Bank. It held that it was a power coupled with interest and therefore the same could not be revoked by the appellant. In the last paragraph of the High Court judgment it is observed: "Mr. Kirti then tried to argue that the entire execution proceedings are ultra vires but we cannot allow him to argue an entirely new point. Sethiya's application was founded on specific grounds which have been rejected by the court below and he cannot be permitted to travel outside them in this appeal." We are unable to spell out the meaning of these observations. It is seen from the grounds of appeal filed before the High Court that the appellant had contended that "because there being no transfer or assignment of the decree in its (Bank's) favour, the Bank of Jaipur Limited, had no legal right or locus standi to execute the decree and the executing court had no jurisdiction to entertain the execution application and to continue the execution proceedings." He had also contended that the execution court cannot go behind the decree, and the execution case must proceed according to the provisions in the Code of Civil Procedure. Obviously the contention of the appellant was that as the decree stood in his name, his agent cannot proceed with its execution as he desired to take into his own hands the execution proceedings. The above contentions of the appellant were purely legal contentions; if they are valid, they go to the root of the matter and therefore the High Court was not right in brushing aside those contentions on the ground that those contentions had not been taken in the pleadings or urged before the executing court.;