The transferee court does not have the jurisdiction to entertain an application under Section 36 of the Bengal Money Lenders Act, which requires the court to pass a fresh decree after reopening the decree under execution. The objection of lack of territorial jurisdiction can be waived by the defendant and is not a ground for declaring the decree a nullity.

( 1 ) THIS Rule was obtained by the judgment-debtors-petitioners in Money Execution Case No. 10/77 and the order challenged is the order dated April 12, 1979, passed by the learned Subordinate Judge, 5th Court, Alipore.

( 2 ) THE decree-holder opposite party instituted a money suit in the Original Side of this Court as against the present petitioners and the pro forma opposite party Badal Chandra Bose for recovery of his dues on promissory notes executed in his favour. In that suit the petitioners failed to avail of the conditional leave granted to them to defend the suit when they failed to furnish security as directed by the Court. There was an ex parte decree which was transferred by the High Court to the Court of the learned Subordinate Judge for execution. This led to the Money Execution Case No. 10/77 as aforesaid.

( 3 ) IN this execution case the judgment-debtors-peiitioners filed an application described as one under Section 36 of the Bengal Money Lenders Act though the grounds taken were - (i) that the decree is non est in the eye of law and is void and is a nullity and not at all executable; (ii) that the decree is the result of fraud practised upon the Court; and (iii) assuming but not admitting that there is a valid decree, it is liable to be reopened under the provisions of the Bengal Money Lenders Act. They pleaded the decree to be nullity because, according to them, the High Court in the Original Side had no territorial jurisdiction to entertain the suit as the promissory notes were all executed beyond the said jurisdiction and no part of the cause of action arose within the said jurisdiction and also because the defendants were all residing beyond the said jurisdiction. Strangely, in this application they further pleaded the decree to be fraudulent on the ground that the promissory notes were all fabricated. The application was contested on behalf of the decree-holder opposite party who contested all the aforesaid objections raised as against the maintainability of the execution case itself.

( 4 ) AT the hearing, as it now appears, it was submitted on behalf of the judgment-debtors-petitioners that their application should be treated not only as one under Section 36 of the Bengal Money Lenders Act but also under Section 47 of the Code of Civil Procedure and the learned Subordinate Judge treated the same as such. The learned Subordinate Judge, however, rejected the application on all its grounds by the order impugned. He overruled the prayer made under Section 36 of the Act on the view that he as the transferee court could have no jurisdiction to entertain the prayer proposed to be made under Section 36 of the Bengal Money Lenders Act. He referred to Section 36 (6) (a) of the Act in holding that such an application can be entertained only by the Court which had passed the decree. So far as the objections under Section 47 of the Code are concerned, those were overruled by the learned Subordinate Judge on the view that the objection as to lack of territorial jurisdiction is not lack of inherent jurisdiction which could be pleaded at the stage of execution. So far as the objection as to the decree being the result of fraud is concerned, the learned Subordinate Judge held that such an objection again cannot be raised at the stage of execution. Reliance was placed by the learned Subordinate Judge on two decisions of the Supreme Court in the cases of Hira Lal v. Kali Nath, and Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman, both of which well support the view taken by the learned Subordinate Judge.

( 5 ) MR. Bhunia appearing on behalf of the judgment-debtors petitioners has first. contended before us that the learned Subordinate Judge had erroneously failed to grant relief to the petitioners under Section 36 of the Bengal Money Lenders Act on the view that as a transferee court he could not entertain such an application. Reliance is placed by Mr. Bhunia on the provisions of Sections 39 and 42 of