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Konthan Kesavan Vs. Varkey Thomman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 226 of 1961
Judge
Reported inAIR1964Ker206
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16, 21, 37 and 38
AppellantKonthan Kesavan
RespondentVarkey Thomman
Appellant Advocate M. Ramanathan Pillai, Adv.
Respondent Advocate K. Sukumaran, Adv.
DispositionPetition dismissed
Cases ReferredKhirad Chandra v. Panchu Gopal
Excerpt:
.....38 of code of civil procedure, 1908 - whether order for delivery and delivery itself for want of territorial jurisdiction void - allegedly under sections 37 and 38 only court which could order delivery of property was shertally munsiff's court as that court competent to execute decree - petitioner had notice of application for delivery but failed to object it - delivery not made by court lacking jurisdiction so section 21 applicable which precludes petitioner from objecting to territorial jurisdiction of court as petitioner had notice of application before order of delivery was passed - petitioner failed to raise objection as to want of territorial jurisdiction at that time so must be deemed to have waived that objection - plaintiff not entitled to urge it as ground for declaring..........that word. in hira lal v. kali nath, air 1962 s.c. 199, sinha. c. j., speaking of the effect of a decree passed without territorial jurisdiction has observed;'the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely jacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. but in the instant case there was no such inherent lack of jurisdiction.' after.....
Judgment:

Mathew, J.

1. The revision petition has been referred to the Division Bench by a learned single Judge of this court as he found that there is conflict of rulings on the point which governs the decision of the C. R. P. The 2nd defendant is the revision petitioner. The decree-holder had obtained a decree for redemption of a mortgage in the Vaikom Munsiffs Court. On 23.5.1959 he filed an application in that court for execution of the decree and on 5-6-1959 that court passed an order for delivery. In pursuance to that order the property was delivered to the decree-holder on 6-6-1959.

2. The petitioner alleged that he came to know of the order for delivery only on 10,8.1959 and prayed to review that order, and for re-delivery of the property. The main ground for review was that at the time when the order for delivery was passed by the court, the property which was the subject-matter of the suit had already been transferred to the territorial jurisdiction of the Shertally Munsiff s Court and therefore the order for delivery and the delivery itself were without jurisdiction and void. The other grounds alleged need not be referred to as they are not necessary for the decision of this petition.

3. Therefore the only point for decision in this civil revision petition is whether the Munsif'f's Court, Vaikom had ceased to have jurisdiction to pass the order for delivery and deliver the property, as the property had already been transferred to the territorial jurisdiction of the Shertally Munsif's Court, and whether the order for delivery and delivery itself were for that reason void and of no effect. The petitioner contended that under. Sections 37 and 38 of the Civil Procedure Code, the only court which could order delivery of the property was the Shertally Munsiff's Court as that was the court competent to execute the decree. Section 37 of the Civil Procedure Code reads as follows:

'37. Definition of Court which passed a decree:

The expression 'Court which passed a decree' or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include:--

(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and

(b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was Instituted at the time of making the application for execution of the decree, would have jurisdiction to try such suit'.

Section 38 is in the following terms:

'38. Court by which decree may be executed:

A decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution'.

4. It was contended by counsel for the petitioner that the court which actually passed the decree i. e. the Vaikom Munsiff's Court, ceased to have jurisdiction to execute the decree on the removal of the property to the territorial jurisdiction of the Shertallay Munsiff's Court. His argument was that Vaikom Munsiff's Court cannot be considered to be the court which passed the decree under Section 37, Clause (b) as that court had no jurisdiction to execute the decree because of the want of territorial jurisdiction on account of the transfer of the property to the jurisdiction on the Shertallay Munsif's Court.

5. In Madhavan Nair v. Kaliappa Naidu, 1962 Ker LT 794. Madhavan Nair J., sitting as a single Judge has held that under Section 38 a decree may be executed either by the court which passed it or by the court to which it is sent for execution and that the court which actually passed the decree has always jurisdiction to execute the decree, even if it has no territorial jurisdiction over the subject matter of the suit at the time of the application for execution on account of its transfer to another jurisdiction. It was contended that this ruling requires reconsideration on the ground that the Code does not authorise the court which passed the decree to execute it by issuing the process beyond the confines of its territorial jurisdiction and that the observation of the Supreme Court in Ramanna v. Nallapparaju, (S) AIR 1956 SC 17 to the effect that.

'It is the settled law that a court which actually passed the decree does not lose its jurisdiction to execute it by the subject matter thereof being transferred subsequently to the jurisdiction of another court'.

does not conclude the point. It is argued on the strength of the ruling reported in Jugal Charan v. Pankajini Dasi, AIR 1961 Cal 183 that in such a case the jurisdiction of the court which, passed the decree, is only to entertain an application for execution and to transfer the decree for execution to the court to whose jurisdiction the property sought to be proceeded against, has been transferred. It was held in that case that the jurisdiction of the court which passed the decree, when the property which is the subject matter of the decree, has been transferred to the territorial jurisdiction of another court is only to entertain an application for execution and that it had no jurisdiction to pass an order for sale or delivery or to issue any process beyond its territorial jurisdiction, either for sale or for delivery of the property.

6. In Masrab Khan v. Debnath Mali, AIR 1942 Cal 321, B. K. Mukherjea J., as he then was, held that an application for execution can be made under Section 37(b) of the Civil Procedure Code to the court which passed the decree even if the subject matter of the decree has been subsequently transferred to the jurisdiction of another court, and that the expression 'jurisdiction to execute it' occurring in Section 37(b) does mean and include the competency of the Court to entertain an application for execution of the decree. Even, if in the circumstances of a particular case a court cannot effectively execute the decree, that would not mean that it has ceased to have jurisdiction to execute it. It still remains the competent Court for purpose of execution, though the decree-holder might have to apply for transmission of the decree to another Court for the purpose of obtaining the relief which he wants.

7. In view of the pronouncement of the Supreme Court, there can be no doubt that the application for execution could be entertained by the Vaikom Munsif's Court. The further question is whether that court had jurisdiction to pass the order for delivery and deliver the property. It was argued that only the Shertally Munisff's Court could have passed the order for delivery and delivered the property us the property lay within its territorial jurisdiction. We are confronted in this case with a situation where the court competent to entertain an application for execution, instead of entertaining it and transferring the decree for execution to the court within whose jurisdiction the property which is the subject matter of the suit is situate, has passed an order for delivery and actually delivered the property. The question is whether such an order and delivery were without jurisdiction, void and of no effect and can be ignored by the judgment-debtor.

8. At this stage it is necessary to understand, the nature of the problem in a case like this. The requirement that the decree should be sent for execution to the court within whose jurisdiction the property which is the subject matter of the decree is situate is not really a requirement as to jurisdiction in the true sense of that term. It is, we think, only a matter of procedure. That will be made; clear by looking into the analogous provisions of the Code. Sections 15 - 20 of the Civil Procedure Code come under the heading 'place of suing'. Now place of suing is a matter relating tovenue where the action is to be laid. It has nothing to do with the jurisdiction of the court.

9. In Whitaker v. Forbes (1875) 1 C.P.D. 51,Blackburn J., said:

'I do not think this case raises any question as to jurisdiction, though in some respect it has been argued as if it did. The case turns on the technical distinction between local actions, where the trial must be local, and transitory actions, and the question is one of venue only.'

See the speech of Lord Herschelt L.C., in British South Africa Co. v. Companhia De Mocambique 1893 A.C. 602 at pp. 617 and 618 for a discussion as to the origin and nature of the rule as to thevenue in respect of local and transitory actions.

10. The expression 'place of suing' simply means the venue for trial and has no reference J to the competency of the court in the sense of its general authority to adjudicate on any matter in controversy. See Gopal v. Shamrao, AIR 1941 Nag21 at p. 51 (F.B.). Section 21 of the Code puts it beyond doubt that the requirement as to laying the venue correctly for local, action is not a requirement as to jurisdiction in the true sense of that word. In Hira Lal v. Kali Nath, AIR 1962 S.C. 199, Sinha. C. J., speaking of the effect of a decree passed without territorial jurisdiction has observed;

'The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely Jacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction.' After referring to the decision of the Privy Council in Ledgard v. Bull, 13 Ind. App 134 (P.C.) his Lordship continued:

'That decision has no relevance to a case like the present where there could be no question of inherent lack of jurisdiction in the sense that the Bombay High Court was incompetent to try a suit of that kind. The objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived.'

We refer to this aspect of the matter to show that if the decree passed by a court having no territorial jurisdiction is not void, there is all the more reason for holding that a sale or delivery in execution by a court having no territorial jurisdiction over the subject matter should not be void. In Seeni Nadan v. Muthuswamy AIR 1920 Mad 427 (F.B.) Sadasiva lyer J., said at p. 434:

'On principles recognized in the Civil Procedure Code, Section 16, it seems to me clear that no Court has any jurisdiction either to entertain an execution application for the attachment of properly outside its jurisdiction or for the sale of immovable property outside its jurisdiction ........'

He cited Section 16 of the Civil Procedure Code as indicating the intention of the legislature that a Court should have no jurisdiction to determine any right in immovable property lying outside its territorial jurisdiction and then asked the question,

'The execution of a decree being only a continuation of the suit there appears to be no legitimate reason: 'Why a Court in the laterstage of a suit should have greater powers than it possessed at its institution?'

Now that the Supreme Court has held that the decree passed by a Court having no territorial jurisdiction of the subject matter is not void, the question to be asked is, why, if execution is only a continuation of the suit, the proceedings therein should be void, if a decree passed under such circumstances is not void, and why the execution court: should have less powers than the Court which passed the decree without territorial jurisdiction over the property.

11. We have tried Jo show that the question of laying the venue correctly for local actions is not a matter relating to the inherent jurisdiction at all, but is merely a matter of procedure which can be waived by a party. As a matter of orderly procedure, we agree that the provisions of the Code relating to the venue must be observed, but it is quite a different thing to say that if they are not observed, the consequence will be that proceeding will be a nullity, as in the case of a failure to observe a rule relating to jurisdiction in the proper sense of that term.

12. It was contended that Section 21 not being applicable to execution, the consequence of the failure to observe rules in the Code relating to execution by the proper court is to render the execution proceedings void. It is difficult to think that the framers of the Code intended a more serious consequence for the violation of the rules as to territorial jurisdiction in execution than for the failure to observe the corresponding provision in the Code for the institution of the suit and the trial thereof. In Satrucherla Sivakanda Raju v. Raja of Jeypore AIR 1927 Mad 627 and Ayisa Beevi v. Nagaratna Mudaliar AIR 1934 573 at p. 575, it was held that the principle underlying Section 21 applied to execution proceedings also, and that a sale or delivery by a court of a property outside its territorial jurisdiction conducted or made without objection cannot subsequently be objected to on the ground of want of territorial; jurisdiction. The Calcutta High Court has taken a different view on the ground that Section 21 being an exception to the general rule that inherent want of jurisdiction cannot be waived should not be so interpreted as to have a wider ambit than the language of the section warrants. See Kunja Mohan v. Monindra Chandra AIR 1923 Cal 619 at p. 622. We do not think that the major premise of the Calcutta High Court in the aforecsaid case that the question is one of inherent lack of jurisdiction can survive the decision of ihe Supreme Court in AIR 1962 SC 199.

13. In Vasireddi Srimanthu v. Venkatappayya AIR 1947 Mad 347 (FB) it was held that Section 21 refers only to objection as to the place of suing in appeal or revision, and will not apply to execution proceedings as an execution application cannot be considered to be a 'suing'. That was a case where the question considered was whether auction purchaser at a sale conducted by the court without territorial jurisdiction over the property and without objection by the judgment-debtor, would get a good title to the property. So also the dictum in the case in Khirad Chandra v. Panchu Gopal, AIR 1939 Pat 532 that a subsequent auction purchaser of the same property would not be precluded from questioning the validity of a previous sale of a property conducted by a court without territorial jurisdiction and without objection by the judgment-debtor. We do not think it necessary to express any opinion on these cases, as the facts of the present case are clearlydistinguishable, on the ground that there the right of no third party is sought to be affected. Even if Section 21 does not in term apply to proceedings in execution the principle underlying that section is applicable and has been applied in a number of cases. We, therefore come to the conclusion that assuming that the delivery was irregular, it was not void. The finding of the court below is that the petitioner had notice of the application for delivery, and that he did not object to it. We hold that the delivery was not made by a Court lacking inherent jurisdiction, that the principle underlying Section 21 will apply and would preclude the petitioner from objecting to the territorial jurisdiction of the court as the petitioner had notice of the application for delivery before the order of delivery was passed. As he did not raise any objection as to want of territorial jurisdiction at that time he must be deemed to have waived that objection, and cannot urge it as a ground for declaring the delivery void, as want of territorial jurisdiction is not a matter which goes to the root of the power of the court to order delivery or actually deliver the property.

14. In the result, we hold that the CivilRevision Petition is without any merit and has to be dismissed. We do so, with costs.


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