1. This is an execution second appeal which raises the question whether, and if so in what circumstances, an executing Court is entitled to question the validity of a decree forwarded to it for execution. On 10th September 1912 a simple mortgage was executed by one Puran Singh (who subsequently made a transfer of the property in favour of the defendant-appellant Th. Shambhu Singh) in favour of the plaintiff Th. Ram Pal Singh in respect of certain property situated in pergana Ghiror of the Mainpuri district. On 2nd July 1932 the mortgagee instituted a suit No. 245 of 1932 for sale of the property in the Court of the Munsif of Mainpuri. Pergana Ghiror lies within the territorial jurisdiction of the Munsif of Shikohabad but the suit was for the recovery of a sum of Rs. 4770 and the suit therefore properly speaking lay in the Court of the Civil Judge of Mainpuri. It so happened that at this date the Munsif of Mainpuri, Mr. Suresh Chandra Chaturvedi, had extended jurisdiction up to as. 5000. The Munsif of Shikohabad Babu Brij Narain had also extended jurisdiction but only up to Rs. 3000. The suit was filed on 2nd July 1932 and the office reported that it was within time and within the jurisdiction of the Court and the suit was duly registered. No plea of want of jurisdiction of the Court was ever taken. The suit was once decreed ex parte but on its being subsequently restored a reference was made by the parties to arbitration and before the arbitrator a compromise was effected and on 20th September 1933 the Munsif of Mainpuri directed the preparation of a decree in accordance with the award, that is to say, he decided the suit in terms of the award of the arbitrators. We are informed that an application was made subsequently for amendment of this decree and while this was pending the suit was on 15th September 1934 transferred to the Court of the Civil Judge of Mainpuri whose jurisdiction included pergana Ghiror, and on 12th October 1935 the Civil Judge passed an order amending the decree and on 19th October the amended decree was prepared by that Court.
2. This was the position when on 4th August 1938 an application for execution was made to the Civil Judge of Mainpuri. This application was rejected on the 15th on the ground that the decree was really a decree of the Court of the Munsif of Mainpuri. On 19th August only a few days later, the present application for execution of the decree was made in the Court of the Munsif of Mainpuri with a statement that the property was situated in the territorial jurisdiction of the Munsif of Shikohabad and asking that a certificate should be sent to that Court for execution of the decree, under the provisions of Order 21, Rule 6.
3. This was done and an application was then made in the Court of the Munsif of Shikohabad on 24th August 1938. On 30th January 1939 objections were put in by the judgment-debtor on two grounds : (1) that the decree was null and void inasmuch as it had been passed by a Court which had not got territorial jurisdiction to entertain the suit and (2) that the decree in question was not executable by sale of the property, the latter objection being based on the terms of the decree. This point has not been gone into by the Courts below. The Munsif of Shikohabad took up the objection and held that it was within the competence of the transferee Court to question the jurisdiction of the Court which passed the decree. He proceeded to hold that the Court of the Munsif of Mainpuri which passed the decree had no territorial jurisdiction to do so. It may be noted, as indicating the dangers of such an inquiry as the one into which the Munsif entered, that in the course of his judgment he said that:
The suit on the basis of the mortgage deed could then have been filed, not there but only in this Court (that is in the Court of the Munsif of Shikohabad).
It was only when in the course of hearing of this appeal we made a careful examination of the circumstances, that it became apparent that the suit could not have been filed in the Court of the Munsif of Shikohabad because first it was not within the ordinary pecuniary jurisdiction of a Munsif and secondly the Munsif of Shikohabad had not extended jurisdiction up to as. 5000 enabling him to entertain it. The matter was taken in appeal before the District Judge of Mainpuri who held, on a consideration of rulings on the point, that
on the principles which might be inferred from the Full Bench decision of this Court in Cantonment Board of Agra v. Kishan Lal : AIR1934All609 the judgment-debtors were precluded from taking an objection about the want of territorial jurisdiction in the execution department.
He accordingly allowed the appeal and directed that the lower Court should proceed with the execution according to law. We are informed that the lower Court has interpreted this order as barring inquiry into the second point, whether the decree was or was not executable by sale of the property, and think it necessary to remark that if that view has been taken by the executing Court, it is obviously an incorrect one. We have been referred to a number of cases relating to the question whether an executing Court is entitled to go into the question of the validity of the decree sent to it for execution and in what circumstances an executing Court can treat the decree sent to it as null and void. We may remark at the outset that it is clear that this was a case to which the provisions of Section 21, Civil P.C. were applicable. That section provides that:
No objection as to the place of suing (i. e., forum) shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice.
It is no doubt, because that also was a case to which Section 21 of the Code would have been applicable that on behalf of the appellant the judgment-debtor appellant Thakur Shambhu Singh, reliance has been placed particularly on the case upon which the learned Munsif based his decision. This is the case in Murlidhar Srinivas v. Gorakh Ram Sadhu Ram ('36) 23 A.I.R. 1936 Nag. 1 in which it was held by a Full Bench of the Nagpur High Court that
an omission by a judgment-debtor to take an objection as to the jurisdiction of the Court to pass a decree in a mortgage suit during the trial or before the preliminary decree for sale is made absolute does not preclude him from raising an objection to delivery of possession of the property in execution of the decree passed against him on the ground that the Court which passed the decree and held the sale had no inherent jurisdiction to entertain the suit.
That was a case in which the Bombay High Court passed a decree on the basis of an equitable mortgage relating to property situated in the Wardha district of the Central Provinces. It was held that
the Bombay High Court had no jurisdiction to pass a decree on the basis of this mortgage when no part of the property over which the decree was intended to operate was situated within the jurisdiction of the Court.
It was further held that:
It is an established principle of law that in a case which the Court is competent to try, if the parties without objection join issue and go to trial, the defendant cannot subsequently dispute the jurisdiction of the Court upon the ground that there were irregularities in the initial procedure which if objected to at the time would have led to the dismissal of the suit. Section 21, Civil P.C. applies to such a case. But Section 21 has no applicability to a case in which a Court which has no jurisdiction over the subject-matter of the action passes a decree which is wholly void, and the maxim applies that consent cannot give jurisdiction.
In the course of the judgment reference was made to another Nagpur case Laxman Madhoji v. Dhamori Co-operative Credit Society reported in ('33) 20 A.I.R. 1933 Nag. 211 in which a Bench had held that
the fact of the Court having no jurisdiction to pass a decree ought to appear on the face of the decree or must be capable of being gathered without the necessity of an enquiry into facts.
The learned Munsif assumed that this decision was applicable in its entirety and that it was apparent on the face of the record that the Munsif of Mainpuri could have had no jurisdiction to entertain the suit upon the mortgage which suit was maintainable only in the Court of the Munsif of Shikohabad. As we now know this latter statement was mistaken and the very fact that this mistake could be made shows the danger of allowing an executing Court to entertain an objection of this particular kind, more particularly when the objection has not been taken in the Court in which the suit was tried out. Moreover, while one may feel that the view taken by the Nagpur High Court was proper in the circumstances of the case with which they had to deal and that such a view might well be taken in a case where, for example, a Court in Saharanpur had passed a decree upon a mortgage which related to properties situated in the district of Ballia, the question assumes quite a different aspect when the executing Court had to deal with a decree passed by a Court in the same district in a suit which apparently by mistake had been instituted in that other Court probably sitting in the very same building and related to property situated in the district in which the suit was instituted. In our judgment, upon its facts, the Nagpur case relied on by the trial Court was not applicable and we do not feel entirely happy about the principles laid down, bearing in mind that there are really very few cases in which it can be said on the face of the decree forwarded for execution that that decree is null and void for lack of jurisdiction of the Court which passed it. Such might appear to be the case in a case where a decree is passed against a minor and on the face of the decree the minor is not shown to have been represented by any next friend, and might also appear to be the case in cases of the kind to which the Nagpur appeal related, but in the majority of such cases a considerable degree of enquiry is necessary before it can be said that the decree is a nullity. The next case on which reliance has been placed for the appellant is, Gorachand Haldar v. Profulla Kumar Roy : AIR1925Cal907 a decision of Bench of five Judges of the Calcutta High Court, in which it was held that
where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction i.e. within these narrow limits the executing Court is authorised to question the validity of a decree.
4. This statement of principle was not supported by any reasoning and appears to us to be dangerously wide and prima facie to be difficult to reconcile with the inferences to be drawn from the provisions of Section 21, Civil P.C. Reliance has also been placed on the case in Imdad Ali v. Jagan Lal ('95) 17 All. 478. In that case a decree had been passed against a defendant who had died while the suit was pending, and the Judges remarked:
There can be no doubt, in our opinion, that the Court charged with the execution of a decree can consider the question as to whether the Court which passed the decree had jurisdiction to pass it, unless the decree itself precludes that question.
5. On the other hand in Raghubir Saran v. Hori Lal : AIR1931All454 it was held that:
Where a decree has been passed by a Court having no territorial jurisdiction over the matter in controversy and no objection as to the place of suing was taken, an independent suit for the avoidance of the decree is not expressly barred by Section 21, Civil P.C. and it is not legitimate to extend the bar of this section.
In the course of the judgment it was remarked:
The decisions of the Courts in India are not by any means uniform on the question of the competency of the Court executing the decree to probe into the jurisdiction of the Court which had passed the decree.
Reference was made to a number of cases including the case in : AIR1925Cal907 mentioned above and it was remarked that these cases were no authority for the proposition that it was not open to a plaintiff to challenge by a suit a decree which had been passed by a Court which did not possess territorial jurisdiction over the subject-matter. But the learned Judges went on to say:
the point has not been argued and we express no opinion on the question whether the matter could be raised before the Court executing the decree.
In that case therefore the decision of this particular question was avoided. Again in Krishna Gopal v. Mt. Lakshmi Bai : AIR1938All232 it was held that:
It is open to the judgment-debtor to raise the question of the jurisdiction of the arbitrator by instituting a regular suit, but such a question cannot be raised in the execution department. Where the judgment was passed without jurisdiction, the judgment-debtor can show in the execution proceedings that it is wholly null and void, but if the execution Court has to go into a variety of circumstances to find out whether the decree was competent, then in such a case the execution Court will not be entitled to go into these questions.
In the course of the judgment it was remarked that
in Tahir Hasan v. Chander Sen : AIR1935All678 it was decided that where a judgment is passed without jurisdiction, the judgment-debtor can show in the execution proceedings that it is wholly null and void. The condition precedent, however, is that the nullity should appear on the face of it. There may be cases in which the want of jurisdiction in the Court which passed the decree is apparent on the face of it and there certainly the execution Court can be asked not to execute the decree on the ground that it is null and void. An ordinary instance of this is where a suit cognizable by a subordinate Judge is disposed of by a Munsif who had no jurisdiction to entertain it.
6. It is obvious that the right of the executing Court to entertain an objection that the decree is null and void and to investigate that question is one about which there is room for considerable doubt. In the light of the decisions already referred to it is always open to the judgment-debtor to institute a regular suit for a declaration that the decree is null and void, while the very instance quoted by the learned Judges in this decision shows the danger of allowing the execution Court to entertain such an objection. Such an objection might well have been entertained in the present suit but would have been, on investigation, found to be wholly fallacious. On the face of it a Munsif would not have jurisdiction to entertain a suit of a valuation of Rs. 4770 and the executing Court might have been asked to say that the decree was not executable on that ground, whereas in fact the Munsif who disposed of the suit did, as we have found, have pecuniary jurisdiction to dispose of it whatever doubt there may have been about his territorial jurisdiction. Another case to which we have been referred in this connexion is Umar v. Mahabir Lal ('40) 27 A.I.R. 1940 Pat. 59. In that case it was held that:
A decree is void when the Court which passed it had no jurisdiction, whether territorial or pecuniary or over the subject-matter or in respect of the judgment-debtor's person, to make it. Where, however, the Court has complete jurisdiction to hear a case but passes a decree in disregard of some provisions of law, the decree is voidable and binding until it is set aside in an appropriate proceeding.
In the course of the judgment it was remarked no doubt that:
It is a well settled principle of law that an executing Court cannot go behind the decree. No doubt if it appears that the Court had no jurisdiction to pass the decree, the decree would be altogether void and in that case it would be open to the executing Court to disregard it and refuse to execute it. This was the view taken by a Full Bench of this Court in Jungli Lal v. Laddu Ram (19) 6 A.I.R. 1919 Pat. 430 where a decree passed against a dead man was held to be a nullity and therefore in-executable against his legal representatives.
In another Patna case, Girwar Narayan Mahton v. Kamala Prasad ('33) 20 A.I.R. 1933 Pat. 104 it was pointed out that
there is a distinction between an inherent lack of. jurisdiction in a Court and lack of jurisdiction on grounds which have to be determined by the Court itself. The first makes the decree a nullity which can be ignored and need not be set aside. The second does not make the decree a nullity but only voidable; such a decree can be set aside by adopting the proper procedure, but cannot be collaterally impeached.
7. It appears to us that it is difficult to lay down any rule which covers all cases. It is obvious that it is not ordinarily apparent on the face of the record that a decree has been passed against a dead man or that the Court which passed the decree (for example as here, a Court in the same district) did not have territorial or pecuniary jurisdiction. It would seem, therefore, that the general trend must always be in favour of requiring the judgment-debtor who asserts a decree to be void or voidable to institute a suit for a declaration that it is not binding upon him and that in the long run we are driven back upon the view that the well settled principle of law that an executing Court cannot go behind the decree is one which should be enforced in all but the most exceptional of cases. In support of the view taken by the' learned Civil Judge we have been referred to Zamindar of Ettiyapuram v. Chidambaram Chetty ('20) 7 A.I.R. 1920 Mad. 1019 in which it was held that:
The provisions of Section 21, Civil P.C. apply to objections regarding want of territorial jurisdiction. Such an objection, not taken as provided by the section, must be considered cured for all purposes and cannot be allowed in execution proceedings.
A party who does not raise an objection to jurisdiction when a preliminary mortgage decree is made absolute, is not entitled to plead in execution that the order was passed without jurisdiction.
8. Similarly in Shingomal Ponumal Firm v. Khushal Das Lekhraj Firm ('40) 27 A.I.R. 1940 Sind 150 it was held that
an executing Court can enquire into and decide that a decree is a nullity not on the ground of jurisdiction but because the decree passed is not a decree at all, such as in the case of a decree against a person who is dead or where the decree sought to be executed is a decree in arbitration proceedings under the Arbitration Act which is no decree at all.
The learned Judges went on to say:
These decrees are nullities, questions of jurisdiction apart, and we think a distinction drawn between decrees which are nullities, apart from a question of jurisdiction, and other decrees, is a surer guide in this matter than a distinction drawn between what is called the absence of inherent jurisdiction and irregularities in the exercise of jurisdiction.
It was further held that:
Section 21, Civil P.C., makes it abundantly clear that the non-oomplianoe with the provisions of Sections 15 to 20 is in no way fatal to the jurisdiction of the Court and does not render the decree passed by a Court of competent jurisdiction a mere nullity so as to empower the executing Court to refuse to execute it on that ground.
This view was also expressed in very clear terms in the judgment of Niyogi J. in the later Full Bench case of the Nagpur High Court, Firm Jagniram Premsukh v. Ganpati Damaji ('41) 28 A.I.R. 1941 Nag. 36 at p. 51, where he remarked after a discussion of the effect of Sections 21 and 11 of the Code:
By necessary implication it must follow that no judgment or decree of any Court is capable of being invalidated on the ground that the Court had no territoral jurisdiction.
This has perhaps stated the matter rather widely. Elsewhere in the course of the decision it was held that:
The rule limiting the territorial jurisdiction of the Court to property situate within the territorial limits can be validly waived by submission.
And per Niyogi J. that
the parties cannot by their mutual consent nullify Section 16, Civil P.C. so as to confer jurisdiction on a British Court which the law itself refused to do. If the Court has inherent jurisdiction (that is to say, jurisdiction in the sense that the property is situated in British India though outside the territorial jurisdiction of the particular Court, and pecuniary jurisdiction), the irregularity in the exercise of it will be cured by submission, but if it has no inherent jurisdiction submission cannot validate its judgment.
9. There is interesting discussion of the subject in the judgment of Sulaiman C. J. in the case relied upon by the learned District Judge, 1934 A.L.J. 409. In that case a suit for recovery of certain grazing dues was instituted in the Court of the Munsif of Muttra and an objection was taken that the suit was not cognizable by the civil Court. The Munsif repelled this plea and decreed the suit and the matter was not taken in appeal. Subsequently on the Board seeking to execute the decree an objection was taken that the civil Court had no jurisdiction to entertain the suit and therefore the decree was a nullity. The executing Court held that it could not go behind the decree as the matter had been decided in the suit. The lower appellate Court held that the decree was no decree and dismissed the application for execution. It was held by the High Court in second appeal that it was not open to the defendant to raise the point of jurisdiction again in the execution department. We would remark parenthetically that in our judgment the principle laid down, that where the question of jurisdiction has been decided in the suit it cannot be looked again in the execution department, appears to be by analogy applicable to cases to which Section 21, Civil P.C. applies, and the question of jurisdiction which might have been raised is not raised at all in the trial Court. Referring to the Calcutta case in A.I.R. 1925 Cal. 907 4 mentioned earlier the learned Chief Justice remarked:
With great respect I would say that the proposition has been stated in too wide terms and that it is not possible to lay down any sweeping statement which will cover all possible categories of want of jurisdiction.
Further on he remarked:
Examining the functions of an execution Court as laid down in the Code of Civil Procedure, it would seem that the proper questions which have to be determined by the Court executing the decree are mentioned in Section 47, Civil P.C. and they are matters between the parties or their representatives relating to the execution, discharge or satisfaction of the decree. Neither in the old Codes nor in the present Code has there ever been any specification entitling the execution Court to inquire into the jurisdiction of the civil Court which passed the decree. Indeed, under Section 225 of the Act of 1882 a Court to which a decree was sent for execution was expressly empowered to require proof 'of the jurisdiction of the Court which passed it.' Those words have been deleted from the corresponding rule, Order 21, Rule 7 of the present Code. The obvious inference is that now even the Court to which the execution is transferred has no longer any power left to require proof of. the jurisdiction of the Court which passed the decree but must execute it as it finds it. As the decree is not required to be produced, Section 44, Evidence Act, would hardly be of help in the Execution Department. One may, therefore, infer that this implies that the Court which passed the decree should not itself begin to inquire into the validity of the decree on the ground of want of jurisdiction.
He went on to say
But it is not possible to lay down broadly that an execution Court can in no circumstances go behind the decree and must of a necessity shut its eyes to circumstances under which the decree came to be passed,
and to refer to two Privy Council decisions relating to decrees passed against a defendant already dead: Radha Prasad Singh v. Lal Sahib Rai ('91) 13 All. 53 and Brij Inder Singh v. Kanshi Ram ('17) 4 A.I.R. 1917 P.C. 156 About these it may be permissible to comment that in both eases considerable investigation might well have been necessary to establish the date of death and that therefore a procedure by suit might well have seemed to be the safer course. He next referred to the Full Bench case of this Court, Katwari v. Sita Ram Tiwari ('21) 8 A.I.R. 1921 All. 118 in which as he pointed out the executing Court was not really investigating the jurisdiction of the Court which passed the decree but was staying its own hand by reason of a statutory prohibition. He went on at the foot of p. 414 to say
But to hold that an executing Court Must always inquire into the question of the jurisdiction of the Court which passed the decree would be to reopen matters which might have been the subject of the controversy in the original suit and which might well have been decided on a consideration of the oral and documentary evidence. Such questions may be mixed questions of law and fact, for example, as to the place where the cause of action arose, the place where the contract was broken, the sub-division in which the property in dispute was situated, the nature and character of land as to whether it is saleable or not and the validity of certain transfers. All such questions are properly speaking questions which arise for consideration in the suit itself and which have to be determined on an examination of the evidence on the record. It would be too much to lay down that the executing Court can go behind these findings and reopen the question and determine afresh that the civil Court decided this question wrongly and, therefore, improperly usurped jurisdiction.
So far as this High Court is concerned, the learned Counsel for the respondent has to admit that apart from certain observations made in a few cases, there is no case with the exception of one, in which an execution Court has' been allowed as such to go into the question of the want of jurisdiction of the Court passing the decree.
He concluded by saying:
It seems to me that it would be very inconvenient and is contrary to the spirit of the provisions in Section 47 of the Code to allow execution Courts to go into such matters.
10. In the light of the various decisions, it seems to us to be correct to say that an execution Court can only go behind a decree which is sent to it for execution, where the decree is null and void and that fact is patent upon the face of the record. We do not think that, save in the most exceptional cases e.g., cases of decrees relating to property outside British India, it can ever be open to an executing Court to entertain an objection that the Court which passed the decree had no territorial jurisdiction, and we feel little doubt that on Shis particular point A.I.R. 1936 Nag. 13 no longer holds the field even within the jurisdiction of that Court. The main ground, however, on which we would support the decision of the lower appellate Court is that in our judgment it is impossible to say that a decree in a case to which Section 21, Civil P.C. was applicable can be regarded as null and void. It may be voidable, though even on that point there may be room for doubt, but on principle it seems to us that it is impossible to hold that where by the provisions of the Code itself an appellate or revisional Court is debarred from entertaining an objection as to the place of suing, that is to say, the territorial jurisdiction of the Court which tried the suit, such a decree can be other than a good and valid decree until such time as it is declared void or not binding by a competent Court. To hold otherwise would be to hold that by this section of the Code an encouragement has been deliberately given to multiplicity of suits, an intention completely contrary to the whole spirit of the Code. In this connexion we are inclined to agree with the remarks of Wallis C. J. in 43 Mad. 67512 at p. 686 when he said:
As regards the second question (whether Section 21 is applicable to execution proceedings) Section 21 forbids any appellate or revisional Court to allow any objection as to the place of suing unless it was taken in the original Court and even then unless there was a consequent failure of justice. The effect of the section in my opinion is that objection which the appellate or revisional Court is thereby precluded from allowing must be considered cured for all purposes unless taken before the passing of the decree in the original Court. The ordinary way of questioning a decree passed without jurisdiction is on appeal or in revision and if this is forbidden, a Court of first instance cannot in execution do that which the appellate or revisional Court is precluded from doing.
11. In other words it cannot even be said that a decree which is sought to be questioned on the ground of absence of territorial jurisdiction in the Court which passed it is a nullity. It must be a good decree because it cannot be upset in appeal or revision on that particular ground. It could not be the case that the Code would enforce upon appellate and revisional Courts the duty of maintaining a decree which was a nullity. It follows that the decree cannot be questioned by an executing Court upon the view that it is a nullity. In our view, therefore, the learned Civil Judge has rightly held that the judgment-debtors were precluded from contending in the execution department that the decree sought to be executed was null and void on the ground that the Court making the decree had not had territorial jurisdiction. The appeal was rightly allowed by the learned District Judge. This appeal, therefore, fails and is dismissed with costs. The executing Court will now proceed with the execution of the decree and will in the first place have to deal with the other objections raised by the judgment-debtors and left undisposed of because the application was rejected on the point of jurisdiction.