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Ashfaq Ali Beg Alias Naney Pahlawan and ors. Vs. Lalla Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1945All309
AppellantAshfaq Ali Beg Alias Naney Pahlawan and ors.
RespondentLalla Prasad
Excerpt:
.....upon the assumption of jurisdiction by the court which passed the..........jurisdiction. the learned counsel for the appellants has endeavoured to show that the present cases are cases of exclusive jurisdiction and not cases involving territorial jurisdiction. i have not been able to agree with him. another case of this court on which some reliance was placed is abdul hasan v. khalil ullah : air1937all761 . it was held in that case that the provisions of section 7, u.p. agriculturists' relief act, were mandatory. the question was considered on an application in revision whether a court at cawnpore had jurisdiction to try a case in which the defendants were residents of the barabanki district. the learned judge who decided the application held that the small cause court at cawnpore had no jurisdiction to try the suit in view of the provisions of section 7,.....
Judgment:

Bennett, J.

1. The only question for consideration in these two appeals is whether the provisions of Section 21, Civil P.C., apply in case of suits brought under the U.P. Debt Redemption Act of 1940. There are special provisions in Section 6 of that Act regulating the place of suing, these provisions being different from those contained in the Code of Civil Procedure. Section 6 commences by saying,

Notwithstanding anything contained in any other enactment for the time being in force, every suit to which this Act applies shall be instituted in a Court within the local limits of the jurisdiction of which the defendant resides.

The section is in some respects similar to Section 20, Civil P.C. but there are some variations and there is no provision at all for the suit being brought where the cause of action wholly or in part arises, as there is in the Code. In the eases under consideration the objection to the jurisdiction of the Court was taken at the earliest opportunity and there was an issue on the point. This issue was decided in favour of the plaintiff by the trial Court on the ground that the mortgaged property in suit was within its jurisdiction. The Munsif observed that his jurisdiction could not be ousted merely because the defendant was not resident within his jurisdiction. In coming to this decision the Munsif appears to have ignored the provisions of Section 6, Debt Redemption Act. In first appeal the Civil Judge expressed himself unable to agree with the Munsif on this point, but he was of opinion that Section 21, Civil P.C. was a sufficient answer.

2. This view is contested by the defendands in these appeals. Their learned Counsel contends that the provisions of Section 21, Civil P.C. apply only to those sections which immediately precede it and that the words 'notwithstanding anything- contained in any 'other enactment for the time being in force' in Section 6, Debt Redemption Act, exclude the application of Section 21. In support of these contentions he has cited a number of cases, and I take them in the order in which they were given. Before doing so, however, it will be convenient to show what is provided by Section 21. The section reads as follows:

No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.

3. I have mentioned that in the cases under consideration objection was taken at the earliest possible opportunity, but the Civil Judge who heard the first appeal was of the opinion that nevertheless Section 21 operated to prevent the bar from applying because there had not been any consequent failure of justice. The first case cited was the Privy Council case in Ramlal Hargopal v. Kishanchand ('24) 11 A.I.R. 1924 P.C. 95. In this case their Lordships of the Judicial Committee allowed the appeal and dismissed the suit because they were unable to see how the decree which had been granted would affect any person or property within the jurisdiction. The decree was given upon, an application for an arbitration award to be treated as a suit. Their Lordships said that it was the duty of the Court in which the award was being filed to proceed to pronounce judgment according to the award and upon that a decree is to follow. They could not see how any decree could be framed upon the award under consideration in that case which would affect any person or property within the jurisdiction. It seems clear from this that there is nothing in that case which would assist the appellants in the present eases. Their Lordships interfered on the point of jurisdiction for reasons which have no place at all in these cases. On the facts stated Section 21 would appear to have been quite inapplicable. In Maha Prasad Singh v. Ramani Mohan Singh ('14) 1 A.I.R. 1914 P.C. 140 the facts also were such that the case San be of no help in the present case. There were special reasons in that case too why the Court which entertained the suit was held to have no jurisdiction to do so. These considerations arose out of the provisions of the Sonthal Parganas Settlement Regulation of 1872, relating to the exclusive jurisdiction of certain officers and land which had not been settled or the settlement of which had not been declared, completed and concluded.

4. In a third Privy Council case, Raruabhadra Raju Bahadur v. Maharaja of Jeypore ('19) 6 A.I.R. 1919 P.C. 150 it was held that Section 21 was not applicable to the case because the Agency Courts had exclusive jurisdiction under a special Act, such Courts not being subject to the Civil Procedure Code. The Madras High Court had thought that the matter was met by Section 21 of the Code, but their Lordships repelled this view, observing that the objection was not an objection as to the place of suing : it was an objection going to the nullity of the order on the ground of want of jurisdiction. In R. H. Skinner v. J. E.E. Skinner : AIR1937All515 it was said that Section 21 does not apply to cases of want of pecuniary jurisdiction or of exclusive jurisdiction. Its application is confined only to objections regarding want of territorial jurisdiction. The learned Counsel for the appellants has endeavoured to show that the present cases are cases of exclusive jurisdiction and not cases involving territorial jurisdiction. I have not been able to agree with him. Another case of this Court on which some reliance was placed is Abdul Hasan v. Khalil Ullah : AIR1937All761 . It was held in that case that the provisions of Section 7, U.P. Agriculturists' Relief Act, were mandatory. The question was considered on an application in revision whether a Court at Cawnpore had jurisdiction to try a case in which the defendants were residents of the Barabanki district. The learned Judge who decided the application held that the Small Cause Court at Cawnpore had no jurisdiction to try the suit in view of the provisions of Section 7, and set aside the decree passed by him. The provisions of Section 21, Civil P.C. are not referred to in the judgment.

5. The remaining two cases cited are cases in which the question arose in execution applications. In Murlidhar Shriniwas v. Gorakhram Sadhuram ('36) 23 A.I.R. 1936 Nag. 1 the Nagpur High Court held that the Bombay High Court had no jurisdiction to pass a decree on the basis of an equitable mortgage when no part of the property over which the decree was in tended to operate is situate within the jurisdiction of the Court. 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. I do not think that the decision in this case assists the appellants, the facts being entirely different and the question arising in execution proceedings. Section 21 has, in my view, no application to execution proceedings, as was held in the last case cited, Brij Mohan Das v, Piari : AIR1937All567 . In that case a decree had been obtained in a Benares Court, though the defendant resided in Jaunpur. The proceedings were governed by Section 7, U.P. Agriculturists' Relief Act, and, therefore, the suit could have been instituted only in the district in which the judgment-debtor, who was an agriculturist, resided. When the decree-holder applied at Jaunpur for execution of his decree the judgment debtor objected on the ground that the Court which passed the decree had no jurisdiction. The Court executing the decree allowed the objection. The matter came be fore a learned Judge of this Court in revision and he allowed the revision application. He pointed out that it was not disputed that but for the Agriculturists' Relief Act the Court which passed the decree had jurisdiction to entertain the 'suit. He also referred to the well known rule that the Court executing the decree cannot go behind it and allow its validity to be impugned. With regard to the provisions of Section 7, Agriculturists' Relief Act, he observed that he was of opinion that this section does not confer or take away jurisdiction from any Court. It merely modifies the provisions of the Civil Procedure Code as regards the place of suing. Further on he observed that Section 21, Civil P.C. is in no way excluded by Section 7, Agriculturists' Relief Act; and lastly he said that if the decree sought to be executed had been appealed from and the question of jurisdiction had been raised, Section 21 would be a bar to the appellate Court entertaining such objection.

6. I lay some stress on this case not only because it is a case of this High Court, but also because learned Counsel for the appellants at the outset of his arguments suggested that the provisions of Section 7, Agriculturists' Relief Act and Section 6, Debt Redemption Act contain parallel provisions. Both commence in the same way, 'Notwithstanding anything contained in any other enactment for the time being in force,' and their provisions are very similar. There is, therefore, no reason for taking one view with respect to Section 21 in cases under Section 7, Agriculturists' Relief Act and another view in cases under Section 6, Debt Redemption Act. Learned Counsel for the respondents referred to two recent cases in which it was also held by another learned single Judge of this Court that Section 21 is not excluded by Section 7, Agriculturists' Relief Act. The eases are Shiam Lal v. Bankey Lal Nanhey Mal and Hori Prasad v. Badri Narain Prasad; they have not been reported in any authorised publication (civil Revision Nos.' 116 and 152 of 1942).

7. I see no reason at all to restrict the application of Section 21 to any sections in the Code itself. The provisions of the Civil Procedure, Code have been made applicable to the Debt Redemption Act by Section 4 of that Act and I am unable to agree that the words at the beginning of Section 6 'Notwithstanding anything contained in any other enactment for the time being in force' mean that Section 21 will not apply. It has been said that the provisions in this section are mandatory. They are no doubt couched in mandatory language, but so are the provisions of Section 20, Civil P.C. There is no reason, therefore, on this ground for holding that Section 21 is not applicable. For these reasons I agree with the lower appellate Court that Section 21 is a sufficient answer to the objection taken. It has not been argued that there was any failure of justice consequent upon the assumption of jurisdiction by the Court which passed the decrees. I accordingly dismiss these appeals with costs. Leave to appeal under the Letters Patent is refused.


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