1. In O.S. No. 6 of 1919 a decree for redemption of a kanom demise was passed by the Subordinate Judge of Ottapalam on March 5, 1920. An execution petition was filed on August 6, 1920 for having a re-valuation made of the improvements and for delivery of the property. On the 1st October, 1920 the place where the mortgaged property was situated was transferred from the jurisdiction of the Ottapalam Subordinate Judge's Court to that of the Palghat Subordinate Judge's Court. The Subordinate Judge of Ottapalam disposed of the execution petition, and, in the course of so doing, he ordered on the 16th December, 1920 that there should be a re-valuation of the property, and on the nth April, 1921 he ordered that a warrant for delivery of the property should be issued returnable on the 21st June, 1921, and he adjourned the further hearing of the petition for disposal of other matters referred to therein.
2. On appeal to the District Judge an objection was taken for the first time to the jurisdiction of the Subordinate Judge of Ottapalam to pass an order for delivery of the property alter the executing Court had lost jurisdiction over the locality where the property was situated. This objection was upheld by the District Judge and the lower Court's order was set aside.
3. It is clear from the above dates that both at the time of passing the decree and at the time when the execution petition was presented the Ottapalam Sub Court had territorial jurisdiction over the subject matter of the suit. It follows therefore that the Ottapalam Court was ' the Court which passed the decree' within the definition in Section 37 (b), C. P. Code. Section 38 provides that ' a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. ' Section 39 (c) provides that ' the Court which passed the decree may on the decree-holder's application send it for execution to another Court if the decree directs the sale or delivery of immoveable property situate outside the local limits of the jurisdiction of the Court which passed it. '
4. As Mukerjee, J. has observed in Begg Dunlop and Co. v. Jagannath Marwari (1911) 14 C L J 228 , these provisions read together plainly indicate the general principle that no Court can execute a decree in which the subject matter of the suit or of the application for execution is property situate entirely outside the local limits of its jurisdiction, and he quotes the Full Bench decision of the Calcutta High Court in prem Chand Dey v. Mokheda Debt (2) in support of this elementary principle. We are not inclined to accept the suggestion that Section 38 makes it optional to a Court to execute its own decree or to transmit it to the Court which has territorial jurisdiction if the original Court has lost jurisdiction over the subject matter of the suit. Although the words in Section 39 are, ' the Court may send it for execution ' we think that in all cases the Court should send its decree to the Court which has territorial jurisdiction if between the passing of the decree and the executing of it the jurisdiction has passed to another Court. In this view of the case, it is unnecessary to canvass the correctness of the decision of the Full Bench of the Calcutta High Court in Prem Chand Dey v. Mokheda Debt (1890) ILR 17 C 699 (F.B.) to the effect that a Court has no jurisdiction in execution of a decree to sell property over which it has no territorial jurisdiction at the time when it passes the order of sale.
5. In the present case the objection to jurisdiction was not taken in the executing Court but was taken for the first time in the grounds of appeal to the lower appellate Court. The question therefore arises whether the submission by the defendant to the jurisdiction of the Ottapalam Subordinate Judge's Court cures its want of jurisdiction. There can be no doubt that under Section 21 of the Civil Procedure Code such an objection will not be admissible if it is not raised to the trial of a suit by a Court which has no jurisdiction over the place of suing. This section makes it imperative that such objection should be taken in the Court of first instance at the earliest possible opportunity, in any case before issues are settled; and there must further be a consequent failure of justice for sustaining the objection.
6. The respondent's pleader has conceded that he submitted to the jurisdiction of the Ottapalam Court so far as it issued directions for re-valuing the improvements, that being a matter which the executing Court has jurisdiction to dispose of under Section 6 of the Malabar Compensation for Tenants Improvements Act. There is nothing in the statement put in by the 1st counter-petitioner at the time of execution or in the B Diary to show that he took this objection even at the stage when delivery was ordered.
7. The question whether Section 21 of the Civil Procedure Code is applicable to execution proceedings was referred to a Full Bench in Zamindar of Ettiyapuram v. Chidambaram Chetti 39 MLJ 203 (FB) but was not directly decided. From the order of reference by Seshagiri Aiyar, J. and from the opinion of Sir John Wallis, C. J., it appears that both those learned Judges were inclined to extend the same principle to execution proceedings; but they decided the case upon other considerations which were that in execution no party had a right to question the correctness of the decree which was being executed or the jurisdiction of the Court which passed it. Following this Full Bench decision, in C.R.P. No. 372 of 1921, one of us applied the same principle to an objection to jurisdiction which was taken only in the executing Court.
8. We are of opinion that the objection in the present case is one of form only and not of substance. The District Judge's order will only have the effect that the property will have to be delivered to the defendant and then it will be open to the plaintiff to apply to the Palghat Subordinate Court for a fresh order for delivery and all the formalities of issuing a commission and handing over property by means of an amin will have to be repeated without any advantage to any one.
9. In the circumstances of the case, as the defendant took no objection at the time but submitted to the jurisdiction of the executing Court and only raised this objection after the order had been passed, we think that the District Judge would have been well advised to have refused to allow such an objection to be taken in appeal and that he should have declined to interfere with the executing Court's order upon an objection which was utterly devoid of merits.
10. In this view, we set aside the District Judge's order and restore the order of the Subordinate Judge with costs here and in the District Court.