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Shaba Yeshwant Naik Vs. Vinod Kumar Gosalia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 41 of 1983
Judge
Reported inAIR1985Bom79; 1984MhLJ699
ActsCode of Civil Procedure (CPC), 1908 - Sections 21(3), 37, 39, 39(1), 47 and 96 - Order 21, Rule 58
AppellantShaba Yeshwant Naik
RespondentVinod Kumar Gosalia and ors.
Appellant AdvocateM.S. Usgaonkar, Adv.
Respondent AdvocateF. Rebello, Adv.
Excerpt:
.....and one of the considerations is failure of justice. he did not express in so many words that there has been failure of justice. but once it is held that the attachment is invalid and if the claimant purchased the property a failure of justice was apparent if they were to be precluded from raising the objection as to jurisdiction only because it was not raised at the earliest. 18. we further find that the decree holder realising that the attachment of property by the margao court was bad in law applied for transfer of the execution. thus the decree- holder it seems never treated the attachment as valid and had himself abandoned that attachment as bad. rightly therefore the learned single judge held that the objectors were never called upon to meet the case of any attachment of the year..........(respondent no.3) in the court of civil judge senior division, margao. on the application of the decree-holder for execution, certain immovable properties situate at quepem outside the territorial jurisdiction of the margao court were attached on 17-7-1969. the margao court by its order dt. 8-7-1969 had also issued an order prohibiting the judgment-debtor from selling property to any one. on 3-9-1969, that is, after the attachment of the property, it appears that the present respondents 1 and 2 (husband and wife) purchased this property from the judgment-debtor -- the respondent no. 3.3. subsequently on 4-1-1973 the margao court, on an application filed by the decree-holder, issued a certificate transferring the execution of this decree to the civil court, quepem. the quepem court then.....
Judgment:

Waikar, J.

1. This appeal is filed by the original judgment-debtor and it raises a question about the interpretation and import of S. 39 of the Code of Civil Procedure (hereafter called 'the Code'). The question arises under the following set of facts : -

2. Shri Shaba Naik (appellant) obtained a money decree in Civil Suit No. 26 of 1969 against Shri Govind Naik (Respondent No.3) in the Court of Civil Judge Senior Division, Margao. On the application of the decree-holder for execution, certain immovable properties situate at Quepem outside the territorial jurisdiction of the Margao Court were attached on 17-7-1969. The Margao Court by its order dt. 8-7-1969 had also issued an order prohibiting the judgment-debtor from selling property to any one. On 3-9-1969, that is, after the attachment of the property, it appears that the present respondents 1 and 2 (husband and wife) purchased this property from the judgment-debtor -- the respondent No. 3.

3. Subsequently on 4-1-1973 the Margao Court, on an application filed by the decree-holder, issued a certificate transferring the execution of this decree to the Civil Court, Quepem. The Quepem Court then issued a show cause notice to the judgment-debtor but he did not appear. However, on 5-10- 1973 the purchaser, that is, the respondents 1and 2 appeared before the Quepem Court and filed an application under O. 21 R. 58(2) read with R. 69 of the Code. The decree- holder in reply contended that the property was already attached before the alleged purchase and hence the property belonged to the judgment-debtor and was liable to be sold in execution.

4. The Quepem Court held that no right, title and interest in respect of the said property passed to the claimants as the property was already attached in execution and hence rejected the claim of the objectors.

5. An appeal against the said order was then preferred by the respondents 1 and 2 and was heard by the learned single Judge (Ginwala, J.) and the same was allowed. Aggrieved by the said decision the present Letters Patent Appeal is now filed.

6. Now though the trial Court's decision was founded on the limited issue that as the alleged purchase was made by the claimants after attachment of the property, the right, title and interest of the judgment-debtor was liable to be sold in execution, the purchasers, that is, respondents 1and 2 submitted before the learned single Judge that the attachment of the property by the Margao Court on 17-7-1969 was null and void as that Court had no jurisdiction to attach the said property which was situate outside its territorial jurisdiction. Being purely a question of law and the material facts being already on record the learned single Judge allowed the argument to be advanced and ultimately it prevailed with him. It may be pointed that no objection was ever raised when this legal argument was being advanced, though for the first time in the appeal.

7. The learned single Judge relied on the following decisions which laid down a general principle that no Court can execute a decree in which the subject matter of the suit or application for execution is a property situate entirely outside the local limits of its jurisdiction and that the Court passing the decree can execute it only in respect of the properties lying within its territory :-- Vasireddy Srimanthu v. venkatappayya, AIR 1947 Mad 347 (FB) ; Begg. Dunlop & Co. v. Jagannath, ILR (1912) 39 Cal 104 ; Merla Ramanna v. Nallaparaju, : [1955]2SCR938 : Sreenath Chakravarti v. Priyanath Bandopadhya : AIR1931Cal312 : Bhagwati Prasad v. Jai Narain Hanuman Das, : AIR1958All425 : Maharaj Kishore Khanna v. Raja Ram Singh, AIR 1954 Pat 164 and Gyarsilal v. Shankar Rao, AIR 1950 Nag 46.

8. A contrary view of the Division Bench of the Rajasthan High Court reported in Tarachand v. Misrimal was not accepted by the learned single Judge.

9. Shri Usgaonkar appearing for the appellant again relied upon the above decision of the Rajasthan High Court which observed that S. 39 of the Code invests the Court passing the decree with a discretion to execute the decree even against the property which is not situate within its territorial jurisdiction.

10. Now the facts in that case were that at the time when the property was attached the same was within the territorial jurisdiction of the Court which passed the decree but subsequently it passed on to the territorial jurisdiction of another Court because of the change of the local jurisdiction

11. In our opinion there can be no doubt about one of the leading rules relating to the jurisdiction of Courts executing decrees that no Court can execute a decree in which the subject matter of the suit or of the application for execution is the property situate entirely outside the local limits of its jurisdiction as laid down by a catena of cases referred to above. In fact territorial jurisdiction is a condition precedent to a Court executing a decree. For due appreciation of the point we may refer to the explanation to S. 37 which was introduced by way of amendment in the year 1976. Prior to the Amendment questions often arose where property situate within the territorial jurisdiction of the Court passing the decree at a subsequent stage came to be transferred outside its jurisdiction. Which of the two Courts would have the jurisdiction to execute the decree was often the issue debated and on this point there was a conflict of judicial opinion which is now solved by the Explanation which reads thus :--

'Explanation - The Court of first instance does not cease to have jurisdiction to execute a decree merely on the ground that after the institution of the suit wherein the decree was passed or after the passing of the decree, any area has been transferred from the jurisdiction of that Court to the jurisdiction of any other Court; but in every such case, such other Court shall also have jurisdiction to execute the decree if at the time of making the application for execution of the decree it would have jurisdiction to try the said suit.'

Thus this Explanation is founded on the established rule referred above but is relaxed that for this reason the Court of the first instance would not cease to have jurisdiction to execute the decree.

12. Section 38 provides that a decree may be executed either by the Court which passed it, or by the Court to which it was transferred for execution. Section 39(1) and particularly on the expression 'may' occurring therein. The provision reads : -

'The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction.'

13. If what Shri Usgaonkar submits is the true position that the expression 'may' used in the Section implies that the Court passing the decree is also inherently clothed with a jurisdiction to execute the decree relating to properties outside its jurisdiction, there was no necessity at all to make any provision for transfer of decree to another Court for execution. The use of the word 'may' in the above provision only shows that a judicial discretion is given in the matter to the Court to prevent an abuse of the remedy sought to be employed either by collusion or by malice or under other considerations. The learned single Judge, therefore, in our opinion rightly held that the Margao Court had no jurisdiction to attach the property in dispute being outside its territorial jurisdiction. Attachment dt. 17-7-1969 being null and void, it had no effect and it could not, therefore, affect the rights of the purchasers, that is, respondents 1 and 2.

14. Shri Usgaonkar next submitted that since no such objection was raised by the claimant as to the validity or legality of the attachment being the trial Court, the objection must be deemed to have been waived. There was no lack of jurisdiction, he submitted, and it was at best a case of an irregularity. He relied upon Koopilan Uneen's daughter Pathumma v. Koopilan : [1982]1SCR183 and the observations appearing therein are as under :-

'Where the High Court upheld the objection to the territorial jurisdiction of a Court in appeal, the order of the High Court would be liable to be set aside even if the objection was raised at the proper time when the objector was unable to show that the trial in a wrong court had led to a failure of justice.'

He also relied upon Bahrein Petroleum Co. Ltd. v. P. J. Pappu : (1966)IILLJ144SC in support of his proposition that the objection must be deemed to have been waived. The observations of the Supreme Court are (At p. 636) :--

'However, it is open to the defendant to waive this objection, and if they do so, they cannot subsequently take the objection. S. 21 of the Code provides an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. The waiver under S. 21 is limited to objections in the appellate and revisional Courts. Section 21 is a statutory recognition of the principle that the defect as to the place of suing under Ss. 15 to 20 may be waived. Independently of this section, the defendant may waive the objection and may be subsequently precluded from taking it.'

15. In Hira Lal v. Kali Nath : [1962]2SCR747 it was also observed that the objection as to the local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a Court can be waived and this principle has been given a statutory recognition by enactments like S. 21.

16. Now dealing with the question of jurisdiction whether territorial or otherwise this is what the Supreme Court in Kiran Singh v. Chairman Paswan : [1955]1SCR117

'It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. The same principle has been adopted in S. 21, Civil P. C., with reference to the objections relating to territorial jurisdiction. The policy underlying S. 21 and S. 99 Civil P. C. and S. 11 of the Suits Valuation Act, is the same, namely, that when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate Court, unless there has been a prejudice on the merits.'

17. Section 21 of the Code as it stood when the present matter was pending before the trial Court had no application to the execution proceedings. It was by inserting sub-cl. (3) to S. 21 in the year 1976 that the provision came to be applied to the execution proceedings. Assuming the principle which applied to suits could as well apply to the execution and that the claimant should have raised this objection at the earliest before the trial Court, S. 21 does not constitute any total bar. There are two exceptions under the Section under which the appellate Court can permit such an objection to be raised for the first time in the appeal and one of the considerations is failure of justice. The learned single Judge permitted the objection to be raised and argued; holding that it was purely a question of law and the material facts were already on record. He did not express in so many words that there has been failure of justice. But once it is held that the attachment is invalid and if the claimant purchased the property a failure of justice was apparent if they were to be precluded from raising the objection as to jurisdiction only because it was not raised at the earliest. What is more the learned counsel for the decree-holder appearing before the learned single Judge also had not raised any objection when the learned counsel for the judgment-debtor was to advance this legal argument. Under the circumstances it appears that the decree-holder waived his right to raise any objection to this new legal pleading being pressed for the first time before the learned single Judge. We see no reason in this Letters Patent Appeal to interfere with the discretion exercised by the learned single Judge permitting the objections to raise this plea particularly when it was not objected to in time by the decree-holder when the same was being urged.

18. We further find that the decree holder realising that the attachment of property by the Margao Court was bad in law applied for transfer of the execution. In the application for transfer of the decree to Quepem Court the decree holder stated that there was no previous application filed by him to attach this property. Thus the decree- holder it seems never treated the attachment as valid and had himself abandoned that attachment as bad. Another aspect of the matter is that once the certificate was issued by the Margao Court,and the decree was transferred for execution to Quepem Court the earlier attachment by the Margao Court, which obviously suffered from the defect of territorial jurisdiction had come to an end and the decree- holder was also aware of this position. Thus it is now too late in the day for the appellant to argue that the learned single Judge should not have entertained the said argument.

19. Shri Usgaonkar then referred to the fact that this property was already attached earlier in the year 1966. This factor no doubt was taken into consideration by the trial Court in rejecting the objections. Now firstly this fact was not referred to by the decree- holder in his reply opposing the objections.

20. Had this ground been raised the objector-claimant could have met the same by showing that no such attachment existed on the date of its purchase. Manilal the constituted attorney of the objectors in his examination-in-chief stated that in the execution proceedings of the Vasco Court objector Vinodkumar had paid Rs. 10,000/- by way of subrogation to the decree-holder on behalf of the judgment-debtor Govind Naik. As regards these fact of payment of the sum of Rs. 10,000/- his statement on oath was not questioned during cross examination. Rightly therefore the learned single Judge held that the objectors were never called upon to meet the case of any attachment of the year 1966. From the evidence therefore we find that the attachment of the year 1966 did not subsist as that claim was already satisfied.

21. In the result therefore we find that there is no substance in this appeal and the same is hereby dismissed with costs.

22. Appeal dismissed.


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