NIZAM MIR BARKAT ALI KHAN Vs. MIRZA NAZIR ALI BAIG
HIGH COURT OF ANDHRA PRADESH
NIZAM MIR BARKAT ALI KHAN
MIRZA NAZIR ALI BAIG
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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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