- (1.) THIS is a miscellaneous civil second appeal.
(2.) A suit was filed by Ratanlal against the Dholpur Glass Works Ltd. Dholpur, in the court of the Munsiff, Allahabad West, on the 3rd of November, 1950, for an amount of Rs. 1160/6/- for balance of the price of the goods sold. The defendant did not appear before the court and an ex-parte decree was granted on the 2nd of April, 1951. Under 0. 21 R. 6, the decree was transferred for execution to the court of the Munsif, Dholpur, through District Judge of Bharatpur. An objection was then raised by the judgment-debtor that the decree was null and void on the ground that Munsiff of Allahabad had no jurisdiction to entertain the suit as the defendant resided at Dholpur and as the cause of action also arose there. The learned Munsiff of Dholpur accepted the objection and held that the decree was incapable of execution being a decree passed by a court having no jurisdiction to grant it. The decree-holder went in appeal to the court of the Civil Judge, Dholpur,who confirmed the decision of the first court. He has now come in second appeal to this Court. It has been urged on behalf of the appellant that the courts below were wrong in holding that the execution court had jurisdiction to examine the question of want of jurisdiction of the court which granted the decree on the grounds contained in sec. 20 of the Civil Procedure Code. Reliance has been placed on certain observations in Shambhu Singh vs. Rampal Singh (l ). Mr. Chowdhry appearing on behalf of the respondent has referred to the decisions of Bhagchand vs. Mst. Jeetbai (2), Nahar Singh vs. Prithi Singh (3), Ramnarain vs. Lala Suraj Narain (4), Sheo Tahalram vs. Binaik Shukul (5) and Gora Chand Haldar vs. Prafulla Kumar Roy (6 ). The question which arises in this case is whether a court executing the decree can go into the question of want of jurisdiction of the court which passed the decree? It may be noted that where it is clear on the face of the record that the court which passed the decree has no inherent jurisdiction to grant it, the executing court may go into the question and examine the point of want of jurisdiction of the court which passed the decree but in cases where there is no inherent want of jurisdiction the executing court cannot question the jurisdiction of the court which passed the decree. Sec. 21 of the Civil Procedure Code lays down that "no objection as to the place of suing shall be allowed by any appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice". Objections relating to the place of suing are barred and cannot be raised in courts of appeal or revision beyond the limits laid down by sec. 21 of the Civil Procedure Code. It is difficult to assume that when such objections have been barred in appeal or revision they might be considered capable of being raised in execution after the passing of decree. The observations which have been referred to by Mr. Chowdhry in Bhagchand vs. Mst. Jeetbai (2) relate to questions regarding jurisdiction of a foreign court and are not helpful in a case like the present one. Similarly, observations in Naharsingh vs. Prithisingh (3) do not relate to a question which is at issue in this case. In that case it was decided that an executing court cannot go into questions regarding want of jurisdiction of the court which passed the decree when such questions had been raised at the trial and disposed of. It is argued that from the proposition laid down in that case it should be inferred that in cases not covered by the conditions laid down in that decision the court executing the decree should be held competent to go into the question of the validity of the decree on the ground of want of jurisdiction of the court which passed the decree. Such an inference is not warranted and the decision in Nahar Singh vs. Prithisingh (3) cannot be of any assistance for the purposes of this case, 1934 Oudh 75 - Ram Narain vs. Lala Surja Narain (4) - is a case where there was a patent want of jurisdiction on the face of the record on the part of the court which passed decree inasmuch as the court which passed the decree had no pecuniary jurisdiction to entertain the suit and secondly, it lacked inherent jurisdiction in so far as the preliminary decree had been granted by the court of the Subordinate Judge and the case had never been transferred to the Munsiff who proceeded to pass a final decree. The circumstances of that case can clearly bedistinguished on the ground that in that case obviously there was a patent want of jurisdiction and the court executing the decree could refuse to execute it on the ground that the decree was null and void. 1931 Allahabad 619 - Sheo Tahal Ram vs. Binaek Shukul (5) is again a case regarding application of sec 44 of the Civil Procedure Code in which the point for determination was about the jurisdiction of a court of an Indian State. In the present case, no such question is involved and the decision of that case, therefore, is not applicable to the circumstances of this case. The observations in Gora Chand Haldar vs. Prafulla Kumar Roy (6) are very wide. The question referred to Full Bench in that case was "whether a decree having been passed by a court having no jurisdiction to pass it, is void and a nullity, and is the execution court competent to question its validity and refuse to execute it ? The answer returned by the Full Bench was in the following terms : "where the decree presented for execution was made by a court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person to make the decree, the executing court is entitled to refuse to execute it on the ground that it was made without jurisdiction; within these narrow limits the executing court is authorised to question the validity of a decree. " The observations in that case came up for discussion in Shambhu Singh vs. Ram Pal Singh (l)and Yorke J. quoted the observations of Sulaiman C. J. with approval, which are as follows: - "with great respect I would say that the proposition has been stated in too wide terms and that it is not possible to lay down any sweeping statement which will coverall possible categories of want of jurisdiction. " Virtually, the language of the answer given by the Full Bench in the Calcutta case is too wide and it would be dangerous to accept the proposition of law laid down in that authority. The correct position of law has been ennuncia-ted on this point in Girwar Narain Mahton vs. Kamla Prasad (7) wherein the learned Judges have observed as follows - "there is a distinction between an inherent lack of jurisdiction in a court and lack of jurisdiction on the grounds which have to be determined by the court itself. The first makes the decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity but only voidable;such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached. " It may be pointed out that an execution court may enter into the question of the jurisdiction of the court to grant the decree incases where there is inherent want of jurisdiction, but in cases falling in the second category, where the grounds underlying the objection of want of jurisdiction have to be determined by the court itself, it is not competent for a court executing the decree to go into such question. In the present case on the face of the record the decree passed by the Munsif of Allahabad does not suffer with the defect of inherent want of jurisdiction. The objection of the judgment-debtor regarding want of jurisdiction of the court which passed the decree proceeds of the ground that cause of action arose within the limits of the Dholpur Court and that the judgment-debtor resided at Dholpur. Both these circumstances do not appear on the face of the record of the decree of which the execution is sought An inquiry shall have to be instituted to find out whether the facts and the circumstances alleged by the judgment-debtor are true. Moreover, such objections as related to the point of place of suing cannot be allowed to be taken in execution in view of the provisions of sec. 21 of the Civil Procedure Code. Mr Chowdhary has not been able to refer to decision where an objection regarding place of suing was allowed to be raised in a court executing a decree in order to challenge the jurisdiction of the court which passed it. This appeal is allowed and the order the court below is set aside and the objection of the judgment-debtor regarding want of jurisdiction of the court which passed the decree is rejected, The court of the Munsif, Dholpur, shall proceed to execute the decree according to law. The appellant shall get costs from the respondents of this court and of both the courts below. . ;