- (1.) THIS is a judgement debtor's execution first appeal. Originally two persons namely, Ram Nik Lal and Jadunath Singh were arrayed as respondents. Later respondent No. 1 died and the whereabouts of his heirs, if any, could not be traced out and eventually his name was deleted by my order dated 28-9-1978. He was the decree-holder and also auction-purchaser of a part of the property in dispute. In the circumstances the appeal abates against respondent No. 1, Ram Nik Lal but it survives against respondent No. 2 Jadunath Singh. I have heard the counsel for the appellant. None has appeared for respondent No. 2.
(2.) IN this case three points were urged before me on behalf of the appellant. The first question raised was the plea of lack of jurisdiction of the court which passed the decree. The decree-holder Ram Nik Lal had filed a suit in the court at Kanpur against the appellant Prabhu Dayal and had obtained an ex parte decree in execution of which the houses and land of the objector appellant were got auctioned. It has now been argued that the Kanpur court had no jurisdiction to entertain the suit and hence the decree under execution was a nullity. On facts it has been found by the court below that the objector had not succeeded in establishing that the suit which was filed before the Civil Judge, Kanpur could not have been filed in that court. It was Suit No. 14 of 1962 and the transaction giving rise to that suit must have related to an earlier period. Prabhu Dayal objector, no doubt, stated that it was settled between him and Ram Nik Lal at Chandwak that the payment would be made in instalments as price of cloth supplied and that Ram Nik Lal would come to Chandwak and realise the money. This statement was rightly disbelieved by the learned Civil Judge and I am also unable to give credence to the assertion that the creditor purchaser would submit to the position that he should approach the debtor at his residence to recover the money from him and the debtor should not himself care to send the money to the creditor. There is another circumstance which belies this assertion. It was elicited in the cross-examination of Prabhu Dayal that such agreement about the mode of payment was made only four or five years back. Prabhu Dayal was cross-examined on 8-10-1966 and if this version be accepted, the agreement should be taken to have taken place on a date when the suit itself was instituted as a pauper suit on 27-5-1961 in the Court of 1st Civil Judge, Kanpur. For this reason in the present case it is not possible to come to the conclusion that no part of cause of action arises within the jurisdiction of the Kanpur Court. Besides, I am of the opinion that subject to a few rare exceptions, the general rule is that an executing court cannot go behind the decree and particularly when the objection relates to purely territorial jurisdiction, it cannot be entertained by the executing court. Learned counsel for the appellant referred me to the following dictum of Sulaiman, C.J. in the Full Bench decision of this Court in Cantonment Board v. Kishan Lal, AIR 1934 All 609 (at p. 613) :- "But it is not possible to lay down broadly that an execution court can in no circumstances go behind the decree and must of a necessity shut its eyes to circumstances under which the decree came to be passed." It must be pointed out that the above observation merely emphasises a possible exception to the general rule and does not annul the rule itself. This is made clear by the following passage at the same page :- "There may accordingly be cases where the decree is incapable of execution, or is void and a nullity, in such a way as to make it impossible for the executing Court to execute it; or there may be cases where there are certain statutory provision which prevent the executing Court from proceeding to sell certain property, for instance, where the sale of certain lands is prohibited and not necessarily their attachment and order for sale. In such cases it may be possible for the Court in one sense to go behind the decree and not execute it; but in reality the Court is merely staying its own hands and not inquiring into the jurisdiction of the Court which passed the decree." It is significant that the Full Bench case related not to territorial jurisdiction but to an alleged lack of inherent jurisdiction and although the lower appellate court had allowed the objection on the view that the suit was not cognizable by the Munsif and had dismissed the application for execution, the High Court on appeal allowed it and ordered that the application for execution should be proceeded with. The ratio decidendi of the Full Bench decision is explicitly stated in the following passage :- "But to hold that an executing Court must always inquire into the question of the jurisdiction of the Court which passed the decree would be to reopen matters which might have been the subject of the controversy in the original suit and which might well have been decided on a consideration of the oral and documentary evidence. Such questions may be mixed questions of law and fact, for example, as to the place where the cause of action arose, the place where the contract was broken, the sub-division in which the property in dispute was situated, the nature and character of land as to whether it is saleable or not and the validity of certain transfers. All such questions are properly speaking questions which arise for consideration in the suit itself and which have to be determined on an examination of the evidence on the record. It would be too much to lay down that the executing court can go behind these findings and reopen the question and determine afresh that the Civil Court decided this question wrongly and therefore improperly usurped jurisdiction."
(3.) HENCE, I am of the opinion that the plea with regard to lack of territorial jurisdiction could not be entertained by the executing court in the present case. The second contention was that the objector was an agriculturist and the attached houses were used for agricultural purposes, and consequently were not liable to be attached in view of Section 60, C.P.C. I am inclined to hold that the two fundamental tests which may be applied for determining as to whether the objector is an "agriculturist" are - (1) what is the preponderating source of his income and livelihood ? and (2) does he devote the major part of his time, labour, attention and skill to the cultivation of land ? See Chandrawati Tewari v. U.P. Government 1961 All LJ 88 : (AIR 1961 All 183) (FB). Applying these tests to the present case it cannot be said that the objector was an agriculturist. It has come in his own statement that he carried on business in Darjeeling where he had been living for 10 or 12 years. In the very objection the appellant expressly asserted that he had been living at Darjeeling in connection with his business for the last 12 years. Obviously, therefore, he could not claim that he personally carried on business in his village Chandwak District Jaunpur. The entire Lagan paid by him is Rs. 20/- only and such a small holding would hardly be sufficient to maintain himself, his family and his two brothers. His own witness Triveni stated that while the cloth business used to take place all the other brothers of Prabhu Dayal did cloth business in Chandwak Bazar and also kept some Parchoon goods. On the basis of such evidence it was rightly inferred that the cultivation was not the profession of the objector and his real profession was business. It was certainly possible to ascribe to him a profession other than agriculture. He is, therefore, not an agriculturist and the houses attached were not held by him as such and were not exempt from attachment and sale under Section 60(c) of the Civil P.C.;