NIZAM MIR BARKAT ALI KHAN Vs. MIRZA NAZIR ALI BAIG
LAWS(APH)-1969-12-19
HIGH COURT OF ANDHRA PRADESH
Decided on December 02,1969

NIZAM MIR BARKAT ALI KHAN Appellant
VERSUS
MIRZA NAZIR ALI BAIG Respondents

JUDGEMENT

Kuppuswami, J. - (1.)The 1st respondent herein obtained a decree for a sum of Rs, 80000/- against Asifunnisa Begum in O. S. 2 of 1962 on the file of the Chief Judge, City Civil Court, Hyderabad at Secunderabad on the foot of an award made on a private reference. When execution was pending, the judgment-debtor died on 26th December, 1965. Thereupon the petitioner desired to bring on record H. E. H. the Nizam Nawab Mir Osman Ali Khan, the former Ruler of Hyderabad on the ground that he was the brother of the Judgment debtor and that as he was in possession of the properties of the Judgment-debtor he was her legal representative; The late H. E. H. the Nizam raised an objection that the respondent herein could not proceed against him in execution without the consent of the Central Government. That objection was overruled, and the late Nizam preferred C. M. A. 403/66 to this Court. During the pendency of the said appeal, the late Nizam died, and this Court dismissed the appeal observing that it would be open to the legal representatives of the late Nizam to take whatever grounds that are open to them when they are sought to be brought on record in the lower court, The 1st respondent herein thereupon filed E. A. 111 of 1967 in the Court of the First Additional Judge. City Civil Court, Hyderabad seeking to bring on record the present Nizam as the legal representative of the deceased Judgment-debtor alleging that he was not only the legal representative of the deceased, but also in possession of the properties of the deceased judgment-debtor. It was held that the application should be made only to the Court which passed the decree. The 1st respon dent herein, thereupon filed E. A. 8 of 1968 praying that H. E. H the Nizam Mir Barkat AH Khan may be brought on record as the legal representative of the deceased judgment-debtor, and the exe cution petition be proceeded with, and the decree executed against him. H. E. H. The Nizam, who was the 3rd respondent in the petition, filed a counter affidavit stating that the consent of the Central Government not having been obtained the petition was incompetent, and was liable to be dismissed in limini in view of sec. 87-B read with section 86 of the Civil Procedure Code. As this plea went to the root of the case, and affected the jurisdiction of the Court, he requested that that question should be decided as a preliminary issue.
(2.)The learned Chief Judge overruled the objection raised by him, and he was ordered to be brought on record as the legal representative of the deceased judgment-debtor. He also directed that execution will proceed in accordance with law.
(3.)The appellant has preferred this appeal against the said order. The question for consideration in this appeal is whether in the circumstances of the case, the petition is not maintainable as against the appellant without the consent of the Central Government under Section 86 read with Section 87-B C. P. C. Section 86 (1) so far as it is relevant for the purpose of this appeal, is as follows :-
"No Ruler of a foreign State may be sued ia any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government".
Section 87-B C. P. C., states that the provisions of Section 85, and of Section 86 (1) and (3) shall apply ia relation to the Kulers of any former Indian State as they apply in relation to the Ruler of a foreign State.
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