1. The facts which have given rise to the only question that has been argued in this second appeal are as follows: -A suit for profits, brought in the Court of an Assistant Collector, was dismissed under Section 102 of the Civil Procedure Code in default of appearance. An application for restoration of the suit was made under Section 103 of the Code and was rejected. From this latter order the plaintiff filed an appeal in the Court of the District Judge. It is not disputed here that this appeal was improperly entertained by the District Judge, for there is no appeal from an order passed by an Assistant Collector under Section 103 of the Civil Procedure Code. The appeal was, however, heard and allowed by the District Judge, who set aside the order refusing to restore the suit, and the case was in consequence remanded to the Court of the Assistant Collector for trial. The suit was eventually decreed, and this decree was upheld in appeal by the same District Judge; At the hearing of the appeal, however, objection was taken to the order of the learned Judge which had set aside the order of the Assistant Collector refusing to restore the suit. The objection met with the following reply: It is contended that the order of remand was without jurisdiction, but this objection should have been taken when the order under Section 562 was passed. The second appeal which is now before me is an appeal from the decree of the district Judge dated 7th May 1908 upholding the decree of the first Court, and the ground of objection taken in this Court is that as there was no appeal from the order refusing to restore the case, the remand by the District Judge was without jurisdiction 'and all proceedings taken under the remand order are null and void.' The learned vakil in supporting this ground of appeal unfortunately for his argument referred to Section 591 of the Civil Procedure Code as the authority which would justify me in giving effect to this plea. This, of course, enabled the learned Counsel for the respondent to reply that Section 591 was in that very Chapter XLIII, the exclusion of which by Section 193 of the Tenancy Act was at the basis of the appellant's contention that the District Judge had no jurisdiction to hear the appeal which the plaintiff had filed from the order of the Assistant Collector. It was probably the failure to observe that Chapter XLIII was so excluded that led to the District Judge acting as he did; for Clause (8) of Section 588 does give an appeal from an order under Section 103 rejecting an application to set aside the dismissal of a suit, but apart from this objection to the application of Clause (8) there is the decision of the Full Bench of this Court in the case of Zohra v. Mangu Lal (1906) A.W.N. 223 where it was pointed out that the Legislature had deliberately and intentionally prohibited appeals to the District Judge from orders of an Assistant Collector of the first class. Knox, J. there said that it was never the intention of the Legislature to give a right of appeal from orders passed by Assistant Collectors of the first class in suits.' It is clear, therefore, and indeed it is not disputed, that the District Judge passed the appellate order, which set aside the Assistant Collector's order, in defiance of the prohibition contained in Section 175 of the Tenancy Act. This being so I have to decide whether the illegal action of the District Judge in exercising a jurisdiction which he was forbidden to exercise can. be attacked here in second appeal from the decree subsequently passed in the suit. Two objections are raised, one that it is too late to attack the illegal order in question, the other that the defendant must be taken to have acquiesced in the passing of the order. I will deal with the objections together. In the Full Bench case of Rameshur Singh v. Sheodin Singh 12 A. 510 cited by the appellant, where the order challenged might more correctly be described as improperly passed than as passed without jurisdiction, it was unanimously held that all the proceedings in the case subsequent to the illegal order of remand were Ultra vires and must be set aside, although the remand order had been followed by the taking of evidence, by findings and by a decree. Edge, C.J., said that where a Court does something which by a Statue it is enacted shall not be done...the doing of the prohibited thing by the Court is ultra vires and illegal, and if ultra vires or illegal it must follow that it was done without jurisdiction.' Here the word jurisdiction is used in the wider sense than, Mr. Justice Mahmood in two decisions on Section 622 of the Civil Procedure Code, reported in the Allahabad Law Reports, defined it. His Lordship in the very case which I am considering referred to one of those decisions when ho said that he agreed with the view that the remand order was 'illegal' and that the subsequent proceedings 'were taken without jurisdiction, within the broad interpretation which I placed upon that technical expression of law in Dhan Singh v. Basant Singh 8 A. 519.'
2. In the case of Goodall v. The Mussoori Bank, Ld. 10 A. 97 which was decided without any reference to Section 591 of the Code, a Court executing a decree had passed an order making a person, who had never been a party to the suit at any stage, a judgment-debtor, and subsequently passed another order against him in the execution department. It was held by Straight and Brodhurst, JJ. that the original order being without jurisdiction could be set aside in an appeal from the later order, although a period of over two years had intervened between the passing of the two orders. This interference was justified upon the ground that the objection taken went to the very root of the matter and to the authority of the Court to make the order in the sense that it had no jurisdiction at all, and inasmuch as the Court had no power under the law' to do what it had done in the first instance, the later order could not be sustained and was therefore set aside. In Rameshur Singh v. Sheodin Singh 12 A. 510 Edge, C.J. referred to this decision with approval.
3. In Nidhi Lal v. Mazar Husain 7 A. 230 at p. 243 Mahmood, J. observed that an irregularity which affected the jurisdiction of the Court could be considered for the first time at any stage, provided that there were on the record sufficient material to substantiate it.' This dictum was endorsed by Sargent, C.J. in Shri Sidheshwar Pandit v. Shri Harihar Pandit 12 B. 155 where it was held that an objection to the jurisdiction of a Court executing a decree might be taken in second appeal in execution proceedings, even though the party taking the objection had accepted the jurisdiction of the Court in the first instance and received money through the Court. In this case the objection to jurisdiction went no further than that the amount of money involved in the case was beyond the pecuniary limits of the executing Court's jurisdiction. In Keshava Sanabhaga v. Lakshmi Narayana 6 M. 192 where again the suit was beyond the pecuniary limits of the Court's jurisdiction, Turner, C.J. and Kindersley, J. held that the lower appellate Court was wrong 'in holding a plea to jurisdiction to be a technical plea in the sense that an appellate Court is entitled to disregard it, if the Court is satisfied with the propriety of the decision under appeal on the merits.' In Gooroo Pershad Roy v. Jaggobundoo Mozoomdar W.R.S.P. (F.B.) p. 15 : 1 Hay 228 it was said that acts done without jurisdiction could be acts of no legal effect at all and must be set aside.' In Bahaji v. Lakshmi Bai 9 B. 268 two out of throe defendants had made no defence to the suit and a decree was passed against them. On appeal the decree was set aside as against all the defendants on the ground, that the lower Court had no jurisdiction. In second appeal it was contended that as against the two defendants who had not defended, the decree of the first Court was good, as those defendants must be taken to have consented to the exercise of jurisdiction by the first Court. West, J. held that a party might waive an irregularity but could not give the authority itself as an attribute of the Court, which must directly or indirectly emanate from the Sovereign.' In Rameshur v. Sheodin Singh 12 A. 510 already quoted, Edge, C.J. observed: The jurisdiction of the Subordinate Courts is created by Statute, and the power of those Courts to act in any particular case or manner cannot exist if the Statute either does not confer on the Court jurisdiction to act in the matter or says that the Court shall not act in the matter,' In Keshav v. Vinayak 23 B. 22 at p. 26 their Lordships say : It is settled law that an objection to jurisdiction may be raised at any stage of a suit, even for the first time in second appeal,' and they add' There is the authority of the Privy Council to show that when a Court has no jurisdiction over the subject-matter of a suit the parties cannot by their actual consent confer that jurisdiction upon the Court.' Ledgard v. Bull 9 A. 191 at p. 203 : 13 I.A. 134 is the Privy Council authority referred to. It is there said that irregularities may be waived but that consent can be of no avail where the Court has no inherent jurisdiction over the subject.' In Amrita bin Bapuji v. Naru bin Gopalji 13 B. 489 was hold that the circumstance that no objection was taken to the hearing of an appeal, in a case where there was in law no appeal, would not prevent the plea of jurisdiction from being subsequently taken in second appeal. In Maharajah Moheshur Singh v. The Bengal Government 7 M.I.A. 283 at p. 302 : 3 W.R. (P.C.) 45 Their Lordships of the Privy Council are reported as saying: 'We are not aware of any law or regulation prevailing in India which renders it imperative upon the suitor to appeal from every interlocutory order by which he may conceive himself aggrieved under the penalty, if ho does not do so, of forfeiting for ever the benefit of the consideration of the appellate Court.' If proceedings must be set aside, even in cases where there is want of jurisdiction in the wider sense of the expression, a fortiori they must be set aside in cases where jurisdiction in the strictest sense of the term is wanting. Although the validity of some of these decisions has been affected by subsequent legislation, their governing principle remains intact. The above dicta, therefore, support the contention of the appellant that if the order passed by the District Judge on appeal in this case was an order passed without jurisdiction, neither the acquiescence of the defendant in the passing of it, nor the delay in attacking it, can give it validity. As to Section 591 of the Code, that section does nothing more than preserve to an appellate Court the right to deal, in an appeal from a decree, with an improper unappealable order passed in the course of a suit by a Court competent to pass it. The withdrawal of that section from consideration cannot affect the authority of an appellate Court to interfere, in an appeal from a decree, with an illegal order passed in the course of a suit by a Court without jurisdiction to pass it. That this Court must have power to interfere with orders of Subordinate Courts passed wholly without jurisdiction is almost self-evident, a view which I find supported by a criticism of Edge, C.J. in the case of Har Narain Singh v. Kharag Singh 1887 A.W.N. 89 at p. 90 : 9 A. 447 where his Lordship observed when discussing the power of the Court to interfere where there had been error or irregularity, the Court must have such power because Section 591 provides that an objection to such order may be made a ground of objection in the memorandum of appeal.' Section 578 of the Civil Procedure Code which is in Chapter XLI, a chapter made applicable to second appeals by Section 587 which is in Chapter XLII, declares that no decree shall be reversed on account of an error, defect or irregularity in any order passed in the suit unless it affects the merits of the case 'or the jurisdiction of the Court.' This clearly shows that when the defect in the order goes to the jurisdiction of the Court interference is justified. Now neither Chapter XLI nor Chapter XLII are excluded from operation by Section 193 of the Tenancy Act.
4. I, therefore, allow this appeal, set aside the decree of the lower appellate Court and direct that the plaintiff's suit do stand dismissed. The appellant will have the costs of his appeal.