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Judgment
G. D. Sharma, J.
Through the medium of this revision petition order dated 1221996 passed by the learned Addl. District Judge, Jammu has been assailed on the
grounds that the learned Judge has committed a grave error when while executing the said decree he set aside the judgment and the decree. The
petitioner herein had filed suit under O. 37 R. 2 CPC for the recovery of Rs. 23.000/. It is pleaded that the executing court had no jurisdiction to
set aside the judgment and decree and the impugned order suffers from the jurisdictional incompetency. The order has caused the miscarriage of
justice and requires to be set aside.
The narration of the following facts is necessary. The petitioner decreeholder on 1771991 filed the suit under the p revisions of 0.37 R. 2 CPC for
the recovery of Rs. 23,0007. In the plaint, it was urged that in the month of June, 1988 respondent (defendant therein) alongwith her husband
approached the petitioner to lend them loan and this request was accepted. The petitioner advanced a loan of Rs. 50,000/ to respondent as well as
her husband through the medium or cheque drawn on Punjab National Bank Rehari from Saving Account No. 10523 belonging to the petitioner.
In para 6 of the plaint, it was alleged that out of the said amount of Rs. 50,0007, Rs. 30,000 were given as loan by the petitioner through the
medium of two cheques of Rs. 15,000/ each bearing No. QDK182206 dated 1 61988 and QDK 189173 dated 881988. In para 11 it was
averred that principal amount which remained to be paid by respondent was Rs.20,000/ and interest accrued thereon Rs.30007 (totaling
Rs.23,000/). Registered notice dated April 9,1991 was served upon respondent for the recovery of Rs. 22,800/ but when the amount was not
paid, the suit was filled for the recovery of Rs. 23,000/ with costs.
The trial court (additional District Judge, Jammu) passed the exparte decree in the sum of Rs. 20,000/ plus interest Rs. 3,000/ and costs of the suit
amounting to Rs. 1574/ alongwith interest @12% per annum on the decretal amount upto the date of decree and further interest @12% till the
decretal amount was liquidated. Respondent had approached the trial court for setting aside the exparte decree on the plea that she was not
served, but this plea did not find favour and it was held that after service she had intentionally remained absent. This order of the trial court has
become final.
The execution proceedings were initiated by the petitionerdecree holder and the respondentjudgement debtor took up the plea that the trial court
had wrongly passed the decree because suit did not fall within the ambit of 0.37 CPC. It was held so because judgement debtor and agreed to
repay the amount of loan received by her through cheque. He has referred to subrule (2) of Rule1 of Order 37 CP C and held that suit was filed
on the basis of loan advanced by cheque which is not covered under clauses (a) and (b) of subrule2 and thus the court had adjudicated the matter
without jurisdiction. This suit could be decided by filing a regular suit. As the court lacked the jurisdiction so the judgement and decree was a
nullity.
The counsel appearing for the petitioner has retiterated the grounds of revision petition and further asserted that the decree was not a nullity. As
the jurisdiction of the court to pass the decree does not appear on the face of the record to be lacking, so it required examination on this question
to be decided at the trial. It was the duty of the trial court to determine whether the loan advanced on the basis of a cheque could form the basis to
file a suit under subrule (2) of Rule1 of 0.37 CPC. Since no such objection was raised before the trial court, so executing court will have no
jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. Such a objection cannot be
permitted to be raised in execution proceedings so as to displace the jurisdiction of the court which passed the decree. The executing court cannot
go beyond the decree and it has to execute the same as it stands. Concluding his arguments he has stated that there is essential difference between
inherent lack of jurisdiction and erroneous exercise of jurisdiction vested in the court on account or some circumstances. The executing court can
go beyond the decree of original court only if there was an inherent lack of jurisdiction to deal with the matter of that court and since the trial court
did not lack the inherent jurisdiction, so executing court has committed a grave error in saying the decree as nullity. The learned counsel has
derived the support in advancing the arguments from the case of Vasudev Dhanjibhai Modi Vs. Rajabhai Abdul Rehman and others (AIR 1970
SC 1475).
Counsel appearing for the respondent has controverted the above stated arguments by pleading that the decree in question was passed by the
court which lacked jurisdiction and that such a decree was nullity in the eyes of law and could be set aside by the executing court. In support of his
contention he has cited the case of Smt. Koshalaya Devi and Others Vs. K. S. Bansal (AIR 1970SC833).
After considering the respective contentions of the counsel for the parties. It has to be seen at the threshold whether the loan advanced on the basis
of cheque could exfacie fall within the purview of Rule 1 of Order 37 CPC or not. SubRule (2) of Rulel of order 37 CPC states that the following
classes of suits can be tried by the competent court by following the summary procedure:
(a) suits upon bills of exchange, hundies and promissory notes;
(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant, with or without interest,
arising;
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand only.
Under head (a) of the said SubRule, suits upon bills of exchange, hundies and promissory notes are covered by this provision of law. A bill of
exchange has been defined under section 5 of the Negotiable Instruments Act. Shorn of its unessentials, the section is reproduced as under :
'Bill of Exchange' A 'Bill of exchange' is an instrument in writing containing an unconditional order, signed by the maker, directing a certain
person to pay a certain sum of money only to, or to the order, of a certain person or to the bearer of the instrument.
A promise or order to pay is not 'conditional' within the meaning of this section and section 4, by reason of the time for payment of the amount or
any instalment thereof being expressed to be on the lapse of a certain period after the occurrence of a specified event which, according to the
ordinary expectation of mankind, is certain to happen, although the time of its happening may be uncertain.
Section 6 defines the cheque and states that, ""a 'Cheque' is a bill of exchange drawn on a specified banker and not expressed to be payable
otherwise on demand.
From the above said definitions it is found that the bill of exchange is the genesis and a cheque is its specie. In the present case the loan was
advanced by way of cheque and it could be a triable issue before the trial court whether the cheque was a 'bill of exchange1 or not. The trial court
could decide this case after appreciating the facts and the law and such a question does not fall within the ambit of an executing court. Even if the
trial court has erroneously exercised its jurisdiction it was not within the competence of the executing court to go beyond the decree in order to
examine itself whether the decree was valid or not. The executing court thus is found to have passed the impugned order in excess of its
Jurisdiction and the impugned order is bad and perverse in the eyes of law. In this view of the matter, the revision petition is accepted and the
impugned order is set aside. 11. The executing court is directed to execute the decree as expeditiously as possible. The office is directed to return
the record of the trial court. The counsel for the parties shall appear before the executing court on July 3, 1998.