A.P.Srivastava, J. - (1.) This special appeal has been preferred against the judgment of Brij Mohan Lall J., by which he dismissed the execution application of the appellant on the ground that the decree sought to be executed was a nullity and could not on that account be executed.
(2.) The facts which are material for the purpose of the appeal are practically not in dispute. On 15-5-1947, the appellant filed against the respondents a suit in the court of the District Judge of what was then the Native State of Gwalior, for the recovery of a sum of Rs. 6,92,236/15/- from the assets of late Munshi Ishwar Saran of Allahabad in the respondents' hands. The suit was based on the allegation that late Munshi Ishwar Saran had taken certain amounts from the appellant as an agent for which he was bound to render accounts but had died without doing the same. Summonses were served on the respondents on 18-11-1948, but none of them appeared to contest the suit. An ex parts decree was thereupon passed by the Additional District Judge of Gwalior against them on the same date, viz., 18-11-1948. The decree was first put in execution in the year 1949 in the Court which had passed it and at the decree-holder's request, a precept was issued to the District Judge of Gorakhpur for the attachment of certain properties situate in that district. The respondents put in appearance in the Gorakhpur court and raised objections. The precept was, however withdrawn by the Additional District Judge of Gwalior by his order dated 4-12-1952 and the execution case which had been started in the Gorakhpur court on the receipt of precept was ordered to be struck off on 14-2-1953. In the mean time on 9-8-1949, the decree-holder made an application to the Additional District Judge of Gwalior praying that the decree be transferred for execution to the court of the Civil Judge at Allahabad where the properties of the judgment-debtors were situate. This application was allowed on 25-4-1950 and the decree was ordered to be transferred to the court of Civil Judge, Allahabad as requested. The actual transfer of the decree was, however, made on 14-9-1951 and the papers required by Order 21, Rule 6 of the Code of Civil Procedure were received by the Allahabad Court on 18-9-1951. On 16-10-1951, the decree-holder filed an application for execution in Allahabad Court praying that certain properties of the judgment-debtors mentioned in the application be attached and sold for the realisation of the amount due to the decree-holder which on that date stood at Rs. 8,98,257/7/-. On the 8th of February 1952, an objection purporting to be one under Section 47 of the Code of Civil Procedure was filed in the execution case on behalf of the judgment-debtors. The main plea raised in this objection was that the decree sought to be executed was not capable of execution because it had been passed by a court which was not a court of competent jurisdiction. It was a foreign court which never had any jurisdiction over the defendants of the suit and the latter had not at any time submitted to its jurisdiction. The decree was, therefore, a nullity. It was also pleaded that the decree had been obtained by practising fraud on the court, the material facts and circumstances having been suppressed and that in any case the claim was barred by time on the date on which it had been filed. It was pleaded further that there was no provision under which the decree could be executed at Allahabad. The judgment-debtors also contended that the properties sought to be attached and sold were not the assets of Munshi Ishwarsaran and were on that account not liable to be proceeded against in execution of the decree. In respect of the application for execution, it was contended that it was not in accordance with law and was not maintainable.
(3.) With the consent of the parties, the execution case was transferred to the High Court under Section 24 of the Civil Procedure Code. After hearing preliminary arguments, Mr. Justice Brij Mohan Lall framed the following issues for determination : (1) Whether the court of the District Judge Gwalior was a foreign court (a) on the date of the institution of the suit, or (b) on the date of the decree. (2) If the aforesaid court is held to be a foreign court, did the defendants submit to the jurisdiction of that court? If not, is the decree binding on them? (3) Whether the decree passed by the District Judge of Gwalior on 18-11-1948 is executable in Uttar Pradesh. (4) Whether the property sought to be attached formed part of the assets of the late Munshi Ishwar Saran.;