Executing Court's limited power to question the legality of a decree, lack of jurisdiction to conduct elaborate enquiry into the legality of a decree

Wadsworth, J.

1. The appellant was the second defendant in a suit on a promissory note which was decreed without contest. In bar of execution of that decree, he raised the objection that the suit was bad and the decree a nullity because the plaintiffs at the time of the filing of the suit constituted an unregistered partnership. The plaint filed on 27th June, 1935, describes the plaintiffs by their names only and contains no allegation that the claim is made on behalf of the firm or that the promissory note was executed to the firm, nor does it pray for a decree in favour of the firm. But Clause 2-a of the plaint avers that the two plaintiffs are "joint partners", that the first plaintiff is the managing partner of the firm and that therefore he is signing the plaint on behalf of the second plaintiff also. Thus the fact that the plaintiffs constitute a firm is pleaded merely to show that the first plaintiff has authority to represent the second plaintiff. The plaint is not in other respects drafted as a plaint in a suit filed by a firm. The decree however has altered the cause title and describes the plaintiffs as "Shobhagmul Sowcar and Ramlal Sowcar by managing partner, first plaintiff" and the same cause title is repeated in the execution petition. The promissory note upon which the suit is brought is dated 15th March, 1933, a date of some importance with reference to the date of the commencement of the Partnership Act.

2. The objection raised by the appellant is briefly that under Section 69 of the Partnership Act no suit could lie by an unregistered firm in respect of a contract and therefore the Court has no jurisdiction to entertain this suit, the decree is a nullity and the executing Court should have refused to execute it. Two questions obviously arise. One is, whether this decree is one passed without jurisdiction and the other is, whether this is a question which the executing Court is entitled to go into. I will deal with the second question first.

3. Undoubtedly, the general rule is that the Court which executes a decree must take it as it stands and cannot entertain ah objection as to its legality or propriety Kalipada Sarkar v. Hari Mohan Dalal I.L.R.(1916) 44 Cal. 627. This general rule is subject to exceptions; but it has been generally recognised by the Courts that exceptions to the rule should be restricted to certain categories which have been recognised by the Courts and that the Courts should be very chary of recognising fresh exceptions. Certain exceptions are widely recognised. It has always been recognised by this High Court that an executing Court can refuse to execute a decree if it is one apparently passed without jurisdiction. Even this exception has not been recognised everywhere vide Nathan v. Samson I.L.R. (1931) 9 Rang. 480 , but it certainly holds force so far as Madras is concerned. If, therefore, on the face of the decree, it can be seen that the Court which passed the decree had no jurisdiction, or if there are apparent reasons for doubting its jurisdiction to pass that decree, the executing Court can go into the question whether or not the decree is a nullity. The extent to which the executing Court can go into the validity of a decree, which is not on its face one passed without jurisdiction, is very limited.

4. One class of cases has been recognised by this High Court, namely, cases in which the executing Court contemplates a sale of property which, by a provision in law enacted for the benefit of the public generally, is inalienable. Cases under this class relate, generally, to sales in violation of the provisions of the Madras Impartible Estates Act or sales in violation of Act lit of 1895 governing service inams. It may, however, be doubted, whether this class of cases is really an exception to the general rule; for the grounds of the executing Courts enquiry into the excitability of the decree are not really grounds relating merely to the decree itself, but rather to the power of