1. This is an application under Section 115 of the Code of Civil Procedure by the decrees-holder applicant against the order of the Joint Second Class Subordinate Judge of Sholapur, dismissing the darkhast on the ground that the decree sought to be executed was passed by a Court beyond jurisdiction, and was, therefore, a nullity. The proceedings in the original suit are not before us. But it is admitted that the suit was properly instituted in the Court of the Second Class Subordinate Judge without objection or challenge by the opponents-defendants judgment-debtors. The parties tendered terms of compromise, and a decree was passed accordingly under Order XXIII, Rule 8, for an amount of Rs. 5,700. How this excess valuation of Rs. 700 arose, there is nothing before us to show, The Subordinate Judge in execution held, in the authorities as he understood them, that this very fact sufficed to render the decree a nullity for want of jurisdiction.
3. This view is sought to be supported for the opponents in this Court on the authority of cases such as Rajlakshmi Dasee v. Katyayani Dasee I.L.R. (1910) Cal. 639 and Birjibhai v. Jamshedji (1913) 15 Bom. L.R. 1021 Diwan Bahadur Rao for the applicant relies, on the other hand, on the principles of decisions such as Lahshman Bhatkar v. Babaji Bhatkar I.L.R. (1883) 8 Bom. 31 and Shamrav Pandoji v. Niloji Ramaji I.L.R. (1895) 10 Bom. 200.
4. On the materials such as they are, it is clear that the plaintiff's valuation was not challenged in the first instance by the defendants or questioned by the Court, Nor in the two previous darkhasts did the judgment-debtors raise the present question of jurisdiction. We are unable to agree with the learned Subordinate Judge that the mere fact that the decree was for an amount of Rs. 5,700 and was passed by the Second Glass Subordinate Judge was ipso facto proof that it was beyond jurisdiction and a nullity. For instance, if a suit has commenced within the jurisdiction and by the addition of manse profits after the date of institution the amount is increased to an amount beyond the jurisdiction, a decree for the full amount is, nevertheless, perfectly valid and with jurisdiction. The jurisdiction in the first instance is determined under the Bombay Civil Courts Act by the valuation in the plaint and not by the result of the decree, whatever it might turn out to be. It is true that deliberate and mala fide under valuation or overvaluation might cause the decree to be a nullity, as in the case above, Rajjlakshmi Base v. Katyayani Dasee. In regard to the observations of Beaman J. in Hirjibhai v. Jamshedji, the facts of that case were shortly that the plaintiff sued for accounts and not knowing the exact amount of his claim, valued it at Rs. 101 and instituted the suit in the Court of the Second Class Subordinate Judge After adverse decisions up to the High Court, he contended, for the first time, that the subject-matter was over Rs. 10,000 and entitled him to leave to appeal to the Privy Council. The Court held that, having deliberately instituted the suit in the Court of the Second Class Subordinate Judge, he must be taken to have conceded the subject-matter to be a maximum of Rs. 5,000 and that he would not be allowed to turn round and say that it was over Rs. 10,000. The proposition enunciated by Beaman J. is that the subject-matter of the suit cannot exceed in value the pecuniary limit of the jurisdiction of a Court in which the suit was instituted. That proposition as we understand it, is perfectly consistent with the proposition of law enunciated in the two previous cases: Lakahman v. Babaji, which was followed by Sargent C.J. in Shamrao v. Niloji. In the latter case Sargent C.J. observed (p. 202) :-
The subject matter of the suit, which was the sum doe on the mortgage sought to be redeemed, was within the jurisdiction of the Second Class Subordinate Judge; and his jurisdiction would continue, whatever might be the result of the suit, in all such matters in the suit as, by the Code of Civil Procedure, are brought within his cognisance, amongst which are matters in execution in that suit.
5. We are unable to agree with the argument for the opponents that if from whatever cause the value of the subject-matter increased subsequent to the date of institution, jurisdiction, ipso facto, ceases, and the only proper procedure is to apply to the District Judge for transfer to a different Court which has jurisdiction, hiving regard to the altered subject-matter of the suit, Reference may also be made in the facts of this particular case to the provisions of Order XXIII, Rule 3, although they are doubtless subject to Section 6 of the Code of Civil Procedure.
6. On the record as it stands, we are of opinion that the mere fact of the compromise decree being for Rs. 5,700 does not, in the absence of any intentional mala fide under valuation by the plaintiff, cause the decree to be a nullity. The learned Subordinate Judge is, therefore, in our opinion, wrong within the meaning of Section 115, Civil Procedure Code, in questioning in execution the validity of the decree sought to be executed, and in not exercising the jurisdiction, which, in our opinion, he possessed, and ought to have exercised. Against such an order not dealing with the merits in execution, no appeal would lie. (Shamrav v. Niloji.)
7. We, therefore, allow the application, set aside the order of the Subordinate Judge, and direct that the Subordinate Court should take it back on the file and proceed with the execution on the merits.
8. Costs of the application on the opponents. Costs in the Subordinate Judge's Court to be costs in the darkhast.
8. I would only add that I have grave doubt whether in any case the point in question should not be held to be res judicata on the principle of Explanation 4 to Section 11, Civil Procedure Code, which can apply even in an execution matter : of Gadigappa v. Shidappa I.L.R. (1924) 48 Bom. 638 However, this point has not been argued, so I merely mention it.