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Raja Jaga Veera Rama Venkateswar Ettapa Nayakar Avergal, Zamindar of Ettyapuram Vs. Chidambaram Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1920)39MLJ203
AppellantRaja Jaga Veera Rama Venkateswar Ettapa Nayakar Avergal, Zamindar of Ettyapuram
RespondentChidambaram Chetty and ors.
Cases Referred and Kalipada Sarkar v. Hari Mohan Dalai I.L.R.
Excerpt:
.....read as applying only to cases where it is possible to take the objection at or before the settlement of issues, and whether the words 'place of suing' are not wide enough to include objections to the place of prosecuting as well as of instituting suits......a decree had been sent for execution to go into the question whether the court which passed the decree had jurisdiction to do so, and influenced the decisions which are referred to in the order of reference. these words, however, have been omitted advisedly in the corresponding order 21, rule 7 of the new code.6. without referring to the statement of objects and reasons, which is not permissible, krishna ayyangar v. nellaperumal pillai we may i think infer that these words were omitted in the new code because it was felt that it was not for the executing court to go into questions of the jurisdiction of the court which passed the decree, at any rate when, as in the present case, that court was an ordinary court in british india governed by the code. this is the view taken in hari.....
Judgment:

John Wallis, C.J.

1. In May 1900 the plaintiff duly instituted the present suit in the Subordinate Court of Madura West where the mortgaged property was situated and obtained a decree under Section 88 of the Transfer of Property Act. In May 1910, this Court was abolished, and by virtue of Section 37 of the Code of Civil Procedure this suit was transferred by operation of law to the newly constituted District Court of Ramnad, as the place where the mortgaged property was situated was within the jurisdiction of that Court and was not within the jurisdiction of the newly constituted Subordinate Court of Ramnad. In 1916 the plainthif applied to the Subordinate Court of Ramnad, which as, we have seen, had no jurisdiction over the suit, for a decree for sale under Order 34, Rule 5 of the Code of Civil Procedure and obtained the decree in 1917. The mistake appears to have been occasioned by the fact that the new Subordinate Court of Ramnad was described in the notification constituting it as created instead of the Subordinate Court of Madura West whereas its territorial jurisdiction was more limited. The 16th defendant, who did not appear, applied for a review of the decree but not for want of jurisdiction, and his petition was dismissed as out of time. He did not appeal against the decree, as he might have done on the ground that it was made without jurisdiction or was erroneous or time-barred. The plaintiff then filed Execution Petition No. 24 of 1914 in the District Court of Ramnad, which apparently returned it for presentation, or sent it directly, to the Subordinate Court of Ramnad which had passed the final decree. It was filed in that Court as E.P. No. 203 of 1917, and that Court thereupon transferred the decree for execution to the District Court of Ramnad within whose jurisdiction the mortgaged property is situated. These are the facts which have given rise to the reference.

2. As regards the first question, I am clearly of opinion that the provisions of Section 21 of the Code of Civil Procedure apply to all objections based on the alleged infringement of the provisions of Sections 16 to 18 of the Code of Civil Procedure as regards the institution of suits relating to immoveable property. The words 'objection as to the place of suing' in their ordinary meaning include objections to the institutions of the suit on the ground that the Court in which it was instituted had no jurisdiction over the immoveable property which was the subject of the suit ; and the words 'place of suing' are used in the heading prefixed to Section 15, as descriptive of the subject matter of the provisions in Sections 15 to 20 as to the Courts in which suits, including suits as to immoveable property, are to be instituted.

3. I do not think the recent decision of the Privy Council in Setrucherla Ramabhadraraju v. Maharaja of Jeypore is opposed to this view of the scope of Section 21. In that case a suit had been instituted in the Subordinate Court of Vizagapatam on a mortgage of property which was partly situated in a Scheduled District over which the Subordinate Court had no jurisdiction and to which the Civil Procedure Code had not been applied. The contention for the appellant was that Section 21 only applied where the right place of suing was one subject to the Code. On this ground their Lordships held that the objection was not an objection to the place of suing which could be cured by Section 21 of the Code of Civil Procedure. They went turther and held that the order for sale was bad as made under sections of the Code which did not apply to a Scheduled District. They had not to consider the application of Section 21 where all the mortgaged property was within the jurisdiction of Courts governed by the Code of Civil Procedure.

4. As regards the second question, 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 objections 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.

5. In view of the above answers to questions one and two, question three would not arise but for a further question raised by Mr. A. Krishnaswami Aiyar at a late stage of the argument. He contended that, admitting that Section 21 applied to suits about immoveable property, it dealt only with the original institution of a suit and not with the prosecution of the suit in a wrong Court after the abolition of the Court in which it had been properly instituted. In support of this contention he relied on the fact that Section 21 requires the objection to be taken 'in all cases in which issues are settled at or before such settlement ' as showing that the section was not intended to apply to an objection, such as the present, which only arose after the settlement of issues on the abolition of the Madura Subordinate Court and could not have been taken at or before such settlement. It is unnecessary to consider whether those particular words may not be read as applying only to cases where it is possible to take the objection at or before the settlement of issues, and whether the words 'place of suing' are not wide enough to include objections to the place of prosecuting as well as of instituting suits. Assuming, however, that Section 21 does not apply, I am still of opinion that the present decree cannot be questioned in execution. An objection to the jurisidiction is a ground for setting aside the decree and is not one of those questions relating to the 'execution, discharge or satisfaction of the decree' which are required by Section 47 to be dealt with in execution. The provision in Section 225 of the old Code that a Court might proceed to execute decrees transferred to it without requiring further proof, among other things, of the jurisdiction of the Court which passed the decree lent some colour to the view that it was open to a Court to which a decree had been sent for execution to go into the question whether the Court which passed the decree had jurisdiction to do so, and influenced the decisions which are referred to in the order of reference. These words, however, have been omitted advisedly in the corresponding Order 21, Rule 7 of the new Code.

6. Without referring to the statement of objects and reasons, which is not permissible, Krishna Ayyangar v. Nellaperumal Pillai we may I think infer that these words were omitted in the new Code because it was felt that it was not for the executing Court to go into questions of the jurisdiction of the Court which passed the decree, at any rate when, as in the present case, that Court was an ordinary Court in British India governed by the Code. This is the view taken in Hari Govind v. Narsingaro Konherrao I.L.R 38. Bom. 194 and Kalipada Sarkar v. Hari Mohan Dalai I.L.R. (1919) Cal. 627 is also a recent authority for the proposition that the Court executing the decree cannot go behind it. I would therefore answer the third question in the negative.

Ayling, J.

7. I agree.

Couth Trotter, J.

8. I agree.


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