1. This is a second appeal from the decision of the District Judge at Poona which raises a question in execution. The respondents filed in the Bombay High Court suit No. 250 of 1929 against one Nowroji Kawasji. The suit was dismissed with costs. After the costs were taxed the figure of Rs. 3,500 was fixed. The decree was transmitted to Poona and from there transferred for execution to the Court of Second Class Subordinate Judge at Vadgaon. On September 28,1936, appellant No. 1, who is the executor of the will of Nowroji Kawasji, filed a darkhast. The property was then duly advertisedfor sale and knocked down to appellant No. 2 on August 4, 1937. On September 2, 1937, the respondents made an application headed ' Under Order XXI, Rule 90' to set aside the sale. The relief was sought on three grounds: (1) that the Second Class Subordinate Judge at Vadgaon had no jurisdiction to sell the property; (2) material irregularities; and (3) that the purchaser was a benamidar of the original decree-holder. I am not concerned with the last two as the lower Courts have recorded their findings against the respondents on those points. On this application being filed certified copies of the concise statement and the judgment of the High Court in suit No. 250 of 1929 were produced and filed before the Court. On September 20, 1937, the Second Class Subordinate Judge dismissed the application and issued a certificate of sale, with an order for possession. From that an appeal was preferred to the District Judge at Poona. The District Judge confirmed the view of the lower Court on points Nos. 2 and 3, but came to the conclusion that the Second Class Subordinate Judge had no jurisdiction to sell the property, and, therefore, set aside the sale. The decree-holder and the auction purchaser have appealed to the High Court.
2. On behalf of the appellants it is contended that the decree received for execution by the Second Class Subordinate Judge's Court did not show on its face that it was not capable of being executed by that Court. Secondly, that after the execution proceedings came to an end by the sale of the property, it was not open to the respondents to contest the jurisdiction of the Court at a later stage. The application being headed under Order XXI, Rule 90, the question of jurisdiction cannot be raised by the respondents, and the trial Court was therefore right in ignoring that question. Thirdly, because the respondents stood by till the execution proceedings came to an end, the objection should be considered waived. Lastly, it was urged that if it be held that the Second Class Subordinate Judge had no jurisdiction, as the subject-matter was over Rs. 5,000, the lower appellate Court (the District Judge) had no jurisdiction to entertain the appeal as in that event an appeal would lie to the High Court. When an executing Court proceeds to execute a decree it proceeds on the footing of the decree which is transmitted to it for execution. The executing Court will have no jurisdiction to go behind the decree to question the jurisdiction of the Court which had passed the decree. If, however, a dispute arises as to the jurisdiction of the executing Court, it has to be deeded by that Court. When doing so, documents which are part of the proceedings in execution of the decree can be legitimately looked at. Therefore to determine the jurisdiction of the executing Court the concise statement and the judgment of the Court, showing what was the suit, will be relevant to be looked at. I do not find anything in law to prevent the executing Court from looking at those documents to determine its jurisdiction to execute the decree. The contention that on the face of the decree it did not appear to be beyond the jurisdiction of the executing Court overlooks the fact that the concise statement and the prayers of the plaint normally form part of a decree. The decree in this case, as presented to the Second Class Subordinate Judge, commenced with a statement that the plaintiffs had prayed for specific performance of an agreement dated November 10, 1925, and in the alternative for damages. Although the decree as drawn did not mention the amount involved, it was clear thatthe matter might be within the jurisdiction or beyond the jurisdiction of the executing Court. There was nothing on the face of the decree to show that it was within the jurisdiction of that Court. I do not agree with the contention that unless the decree on the face of it shows that it was beyond the jurisdiction, the question cannot be raised at a later stage. Section 21 of the Civil Procedure Code does not help the appellants as the dispute is not in respect of the place of suing but goes to the very foundation of the jurisdiction of the executing Court. In Shri Sidheshwar Pandit v. Shri Harihar Pandit 1887 I.L.R. 12 Bom. 155. in considering the jurisdiction of the executing Court, it was stated as follows (p. 157): .execution of the decree by Section 223 of the Civil Procedure Code [of 1882] belongs to the Court which has pronounced it, and as the Second Class Subordinate Judge could not have entertained the suit, so neither could he deal with it in execution.
3. That passage shows that the standard by which the jurisdiction of the executing Court has to be considered is its capacity to try the suit itself. Under the circumstances it cannot be urged that unless the decree on the face of it showed want of jurisdiction, the same must be deemed to exist. This question is material because the jurisdiction of each of the subordinate Courts is based on what the Legislature has invested it with. It is not a matter of consent of parties. Therefore if a Court attempts to deal with a matter which is beyond its jurisdiction, no consent of the parties, as has been repeatedly held, can give it jurisdiction. Of course the question of irregular exercise of the jurisdiction vested in the Court stands on an entirely different footing. Proceeding in this case on the footing that the Second Class Subordinate Judge at Vadgaon had no jurisdiction to try the suit filed in the High Court, it will have, according to the observations in Shri Sidheshwar Pandit v. Shri Harihar Pandit, no jurisdiction to execute the decree in that suit.
4. The contentions that the objection should have been taken at an earlier stage and that there was a waiver are based only on the grounds of general principles of justice. A question of waiver cannot arise unless it is pleaded, and in the present case there is nothing to show that the respondents by their conduct had waived the objection. The sale took place on August 4, 1937, under the first darkhast filed in September, 1936. Moreover, as I have pointed out, when the question goes to the root of the jurisdiction there is no question of waiver or acquiescence.
5. On behalf of the appellants my attention was drawn to the judgment in Naro Hari v. Anpurnabai 1874 P. J. 218, quoted in the foot-note to Vishnu SakhramNagarkar v. Krshnarao Malhar 1886 I.L.R. 11 Bom. 153, 100n. Some observations in that judgment, indicating that there may be acquiescence, have been relied upon, but the facts were entirely different. The parties there had rested content with the situation arising from certain orders for years after they were made. In the light of subsequent rulings and observations of the Privy Council, I do not think the observations there found, about acquiescence, as sought to be construed by the appellants, can be given effect to. The decision in that case was based particularly on the fact that the parties had acquiesced in the situationfor years and it was not proper to disturb the position by inquiring into the question of jurisdiction of the executing Court.
6. Because the application was headed under Order XXI, Rule 90, the question of jurisdiction raised in it cannot be ignored. The heading was immaterial.
7. The last contention that the appeal should haVe been made to the High Court and not to the District Court is unsound. The Second Class Subordi- nate Judge purported to exercise jurisdiction over the matter. The validity of the order made by that Judge is disputed. The appeal under the circumstances would lie to the District Judge. It is no argument that because the District Judge holds that the Second Class Subordinate Judge had no jurisdiction (as the subject-matter of the suit filed in the High Court; was beyond his jurisdiction) the appeal should lie to the High Court. In my opinion the conclusion of the lower appellate Court is correct and the appeal is therefore dismissed with costs of respondents Nos. 1 and 2.