Krishnaswamy Ayyangar, J.
1. This appeal arises out of an order passed by the Subordinate Judge of Tenali in execution of a decree passed by the Subordinate Judge of Bapatla in O.S. No. 63 of 1922 on his file. The appellant is the legal representative of the fourth defendant in the suit which resulted in the decree now sought to be executed. The respondent is the legal representative of the decree-holder. The appellant's contention in short was that there was no valid executable decree so far as he is concerned. This contention having been overruled by the Subordinate Judge he has appealed to this Court against his order.
2. In order to appreciate the question that arises for consideration in this appeal it is necessary to state a few facts. O.S. No. 63 of 1922 was instituted by one Lakshmiarayana to recover a sum of Rs. 9,282-5-4 being the balance due on a mortgage dated 1st April, 1910, executed in his favour by the husband of the first defendant in the suit. There were numerous other defendants in possession of portions of the mortgaged properties under alienations effected subsequent to the mortgage. The predecessor-in-title of the appellant was the fourth defendant. By the preliminary decree passed by the Subordinate Judge of Bapatla the fourth defendant was exonerated from the decree. The plaintiff preferred an appeal to this Court in A.S. No. 405 of 1925. On 8th May, 1934, this Court (Ramesam and Curgenven, JJ.) modified the decree of the lower Court in certain particulars. Clause 3 of the appellate decree which is the only clause relevant for the present purpose is as follows:
That the decree of the lower Court in so far as it relates to defendants 4, 7, 29, 38 and 36 as to Ex. XIII, be, and hereby is, set aside and the properties forming items 1, 13, 12, 9 and 6 mentioned in the schedule attached to the decree of the lower Court, with which the said defendants 4, 7, 29, 38 and 36 as to Ex. XIII are severally concerned be sold only after paying for the improvements effected by the said defendants on the sites.
The result was that the appellant's predecessor-in-title, namely, the fourth defendant and the property in his possession were declared liable for the mortgage amount subject to the condition that he should be paid the value of the improvements effected by him. While the appeal was pending in this Court the decree-holder applied to the Bapatla Sub-Court for a final decree being passed and such a decree was actually passed on 3rd October, 1927. By this decree which followed the declarations contained in the preliminary decree of 19th December, 1924, the position of the fourth defendant was in no way affected. It is also common ground that the decree-holder did not take any steps either to obtain a fresh final decree incorporating the modifications made by the High Court or to have the final decree already passed amended so as to embody them into it. This omission furnishes the ground upon which the appellant rests his contention that there is no executable final decree in favour of the decree-holder and the order of the learned Judge is therefore wrong. In his execution petition E. P. No. 18 of 1940 which has given rise to this appeal the respondent has mentioned under column 1 under heading ' Number of suit ' (1) Bapatla Sub-Court file O.S. No. 63 of 1922, (2) Madras High Court file A.S. No. 405 of 1925. In column 4 headed ' Date of decree ' he has mentioned 8th May, 1934, as the date of the decree of the High Court in A.S. No. 405 of 1925. The contents of these columns suggest that what the respondent was seeking to execute was the decree of the High Court, which, as we have said, had resulted in certain modifications being introduced into the preliminary decree passed by the Bapatla Sub-Court. When notice of this execution petition went to the appellant, he filed a counter-petition raising the contention that the decree-holder should first obtain a final decree by the Bapatla Sub-Court and get it transferred to the Sub-Court at Tenali before he can seek execution.
3. A further complication arises on account of the fact that territorial jurisdiction in respect of the properties in suit was transferred from the Bapatla Sub-Court to the new Subordinate Judge's Court created at Tenali with effect from 1st August, 1930. The creation of the Tenali Subordinate Judge's Court was sanctioned under G. O. No. 2529 Law General Department, dated 16th June, 1930, published in the Fort St. George Gazette, on 24th June, 1930. Lists of the original suits, execution petitions, insolvency petitions and miscellaneous petitions relating to the transferred jurisdiction were made and the concerned proceedings were transferred to the Tenali Subordinate Judge's Court by order of the District Judge. But due possibly to the fact that O.S. No. 63 of 1922 had already been disposed of by the passing of both the preliminary and the final decrees therein and the fact that no execution proceedings had been instituted, the lists aforesaid did not include this suit or any proceedings connected therewith. The position therefore was that the Tenali Subordinate Judge's Court which has passed the order now under appeal acquired territorial jurisdiction over the mortgaged properties, but the transfer of business made to it from the Bapatla Subordinate Judge's Court left out the suit with which we are concerned. On this circumstance is based the second contention of the appellant that the Tenali Subordinate Judge's Court has no jurisdiction to execute the decree as ruled in Ramier v. Muthukrishna Ayyar : (1932)62MLJ687 . '
4. Prima facie both the contentions of the appellant appear to be sound and supported by authority. It is difficult to maintain the proposition that the decree of the High Court can be regarded as a final decree capable of execution. The correct view in a case where an appeal has been preferred from the preliminary decree is, as held in Gajadhar Singh v. Kishan fivanlal I.L.R.(1917) All. 641 that the decree passed by the appellate Court should be deemed to be the preliminary decree which has to be made final under Order 34, Rule 5 before it can be regarded as executable. It is not necessary for the present purpose to consider whether the right course for the decree-holder is to apply for a fresh final decree or to have the final decree already passed suitably amended by incorporating the modifications, as he has done neither. The Subordinate Judge has been able to persuade himself on a construction of the High Court's decree, that it is and was intended to be a final decree. But this view is plainly unsustainable and indeed it has not been supported before us. The second point also appears to be concluded in the appellant's favour by the Full Bench decision in Ramier v. Mulhukrishna Ayyar : (1932)62MLJ687 to which we have referred.
5. The respondent's advocate has however sought to get over these difficulties by urging (1) that it is not open to the appellant to plead that there is no executable decree by reason of earlier orders made by the Tenali Subordinate Judge's Court, and (2) that those orders also debar him from contending that the Tenali Sub-Court had no jurisdiction to direct the execution of the decree. In other words, the appellant's contentions are met by the plea of res judicata.
6. It would seem that the first execution petition, namely, E. P. No. 43 of 1931 was filed in the Tenali Sub-Court for the purpose of having the decree executed against the parties other than the appellant and his predecessor-in-title which parties were bound by the preliminary and final decrees passed by the Bapatla Sub-Court. In this execution petition some of the mortgaged properties were sold and the amount realised went in part satisfaction of the decree. As the appellant was not a party to this execution petition, the proceedings therein have no relevance to the present appeal.
7. The first execution petition in which relief was prayed for against the appellant was E. P. No. 57 of 1937 filed on 2nd April, 1937. The decree-holder asked the Court to proceed against the appellant and certain other judgment-debtors for the realisation of a sum of Rs. 14,886-13-11 and costs by sale of their properties as per the directions contained in the decree of the High Court in A.S. No. 405 of 1925. The appellant was made the third respondent in place of his predecessor-in-title,. namely, the fourth defendant. On 14th July, 1937, the Court directed the issue of notice under Order 21, Rule 22 to the appellant amongst others. Though he was served, the appellant did not appear and was accordingly declared ex parte. On 6th January, 1939, the Court refused execution against the seventh item of the properties sought to be proceeded against--with this item the appellant has no concern--but as regards the rest directed the decree-holder to file the sale papers on or before 18th January, 1939. On this date time for the filing of the sale papers was extended till 26th January, 1939, when the execution petition was withdrawn and dismissed as not pressed. The order passed on 6th January, 1939, is clearly an order directing execution to proceed on the footing that the decree was one capable of being executed by the Court in which the execution petition had been filed.
8. The next execution petition, E. P. No. 61 of 1939, was filed on 28th August, 1939, the appellant being the second respondent therein, notice was directed to issue against the respondents, but the appellant refused to accept service. The petition contained the prayer that the values of the superstructures on the several properties in which the judgment-debtors were interested should be determined in order to enable the decree-holder to pay the several sums payable under this decree and have the respective properties sold through Court. Schedules showing the properties in which the several defendants were interested were called for and also proof of the values of those properties. The information called for was furnished and sale papers were also filed for settlement of the proclamation. On the 15th January, 1940, the Court directed the office to check the papers. The office found that the encumbrance certificates had not been filed. When the petition was called on 19th January, 1940, there was no appearance on behalf of the decree-holder, nor had the encumbrance certificates been filed. The execution petition was thereupon dismissed. So far as this petition is concerned, it does not appear that there was any order made by the Court while it was pending, which can be said to involve a decision that the decree was executable. It follows that there is nothing in the proceedings connected with this execution petition which can be said to give rise to the plea of res judicata.
9. But as we have already pointed out, the order of the 6th January, 1939, in E. P. No. 57 of 1937 must be deemed to involve a determination by the Court that the decree in question was capable of execution. The order was made after notice to the appellant issued under Order 21, Rule 22, calling upon him to show cause why the decree should not be executed against him. He did not appear to show such cause. Following the decision in Lakshmanan Chettiar v. Palaniappa Chetti A.I.R. 1928 Mad. 1052 we must hold that the order operates as res judicata, notwithstanding that there was no express decision on the point and the execution petition was ultimately dismissed as not pressed. The principle to be applied in such cases is that laid down in Mungal Pershad Dichit v. Girija Kant Lahiri extracted in the judgment of Devadoss, J., in the above case. It is that,
although the execution of a decree may have been actually barred by time at the date of an application made for its execution, yet, if an order for such execution has been regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid.
The learned Judges support themselves by these observations in laying down the principle that when an order for execution of a decree is made, the implication is that the appellant has a right to execute the decree; that it is an executable decree, that it is not barred by limitation and that the judgment-debtor is liable to satisfy it. In Ramaswami Reddi v. Rangamannar Iyengar : (1914)26MLJ255 , Sankaran Nair and Ayling, JJ., applied the same principle to a case where the decree-holder sought to execute a preliminary decree which had not been made final. When the decree-holder sought to execute it notice of the execution petition went to the judgment-debtors, but the latter did not raise the objection, that the decree, being a preliminary decree was not executable. Thereupon the Court directed the properties to be sold. That order was not set aside and became final and it was held that it was thereafter not open to the judgment-debtors to contend that the decree was only a preliminary decree incapable of being executed. In Subbarayadu v. Bapayya : AIR1927Mad149 , Madhavan Nair, J. as he then was, held that a previous ex parte order which raised a question about the executability of the decree operates as res judicata and the judgment-debtor cannot in a subsequent application raise the plea that the decree is not executable or that the previous application was barred by time.
10. But it is contended that the Tenali Sub-Court which made the order now under appeal had no jurisdiction either to execute the decree or to make the order sought to be pleaded as constituting res judicata. There can be no doubt that the Tenali Sub-Court cannot execute the decree unless the Bapatla Court which passed the decree had sent it to the Tenali Sub-Court for execution under Section 39 of the Civil Procedure Code and if the objection had been taken by the appellant in the first instance, that is, in E. P. No. 57 of 1937, it should have prevailed. But now after the order for execution which had been made in it though ex parte the objection to the jurisdiction cannot be sustained unless we can hold that it is not a case of a mere irregularity in the assumption or exercise of jurisdiction, as distinct from one of absolute want of jurisdiction. The leading case on the subject is Ledgard v. Bull decided by the Privy Council in 1886. The same principle was reiterated in Minakshi Naidu v. Subramania Sastri . In Ledgard's case the Judicial Committee observed as follows:
When the Judge has no inherent jurisdiction over the subject-matter of a suit, the parties cannot, by their mutual consent, convert it into a proper judicial process, although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him. But there are numerous authorities which establish that when, in a cause which the Judge is competent to try, the parties without objection join issue and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit.
These observations were repeated in the later decision of the Board in Minakshi Naidu's case . This principle has been applied by the Courts in India in great marry cases of which it is suificient to refer to Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh I.L.R.(1907) Cal. 193. Mookerjee, J., after an examination of the Indian and the English authorities on the point elucidated the distinction in matters of jurisdiction in this way:
A Court cannot adjudicate upon a subject-matter, which does not fall within its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties, and, if a Court has no jurisdiction over the subject-matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal, or its nullity may be established, when it is sought to be relied upon in some other proceeding : See Hawes on Jurisdiction, pages 12-16; Hermann on Estoppel, section no, and Frankel v. Sutterfield (1890) 19 Atlantic Rep. 898 .
An entirely different class of questions, however, arises, when it is suggested that a Court in the exercise of the jurisdiction which it possesses, has not acted according to the mode prescribed by the Statute. If such a question is raised, it relates obviously, not to the existence of jurisdiction, but to the exercise of it in an irregular or illegal manner. This distinction between elements, which arc essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be assumed and exercised, is of fundamental importance, but has not always been sufficiently recognised.
After making these preliminary observations the learned Judge proceeds to observe:
Although the objection that a Court is not given jurisdiction over the subject-matter by law, cannot be waived, Colab Sao v. Chowdhury Madholal (1905 Cri.L.J. 384: 9 C.W.N. 956 yet defects of jurisdiction arising from irregularities in the commencement of the proceedings, may be waived by the failure to take objection at the proper stage of the proceedings, Harkeness v. Hyde (1878)98 U.S. 476 Jollaud v. Sprague (1838) 12 Peters U.S. 300 Rhode Island v. Massachusetts (1838) 21 Peters U.S. 657
To put the matter from another point of view, it is only when a Judge or Court has no jurisdiction over the subject-matter of the proceeding or action in which an order is made or a judgment rendered, that such order or judgment is wholly void, and that the maxim applies that consent cannot give jurisdiction; in all other cases, this objection to the exercise of the jurisdiction may be waived, and is waived, when not taken at the time the exercise of the jurisdiction is first claimed, Hobart v. Frost (1856)5 Duer N.Y. 672 Black on Judgments, Section 217.
We have therefore to see under which class the objection to jurisdiction here raised really falls; and for this purpose we must consider whether the Tenali Sub-Court had jurisdiction over the subject-matter of the execution petition; for this is the true test. There can be no doubt that after the transfer of territorial jurisdiction; to the Tenali Sub-Court it is that Court that had the jurisdiction over the properties. Section 39 which empowers the Court which passed the decree to send it for execution to another Court, states that this procedure may be adopted if, the decree directs the sale or delivery of immovable property outside the local limits of the jurisdiction of the Court which passed it, that is to say, the transfer of the decree for execution to another Court is permitted if the Court in which the property directed to be sold or delivered is situated within the territorial jurisdiction of that other Court. We consider that the true effect of Section 39 is to recognise the transferee Court as having inherent jurisdiction, to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub-Court when proceedings were commenced in it, but that objection not having been taken in the first instance, the judgment-debtor (the appellant ) must be held to have waived it.
11. In this connection an observation in Subramania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885. affirmed* by the Full Bench in Ramier v. Muthukrishna Iyer : (1932)62MLJ687 , is worthy of mention. It will be remembered that under Order 21, Rule 5 if the Court to which the decree is to be sent is situate in the same District as the Court which passed the decree, the latter Court can send it directly to the former without the intervention of the District Court of the district in which the decree is to be executed. Adverting to this rule the learned Judges who decided Subramania Iyer's case (1928) 28 L.W. 885. stated as follows:
If both the Courts arc situated in the same district, seeing that the transfer might be made directly from the first Court to the second Court, without the intervention of any superior Court, it may be said that the objection by reason of the language of Section 38 or, in other words, by reason of the irregularity that the decree had not been formally sent to the second Court which has territorial jurisdiction is not fatal to the competency of the second Court to pass the order. In such a case, in spite of the irregularity, an order directing execution after notice may make the matter res judicata, but where as in this case, the transfer cannot be made directly to the second Court, and it should only be made first to the District Court of Tanjore and the District Court may either execute the decree itself or may send it to the Sub-Court (vide Order 21, Rule 5), Civil Procedure Code, the irregularity cannot be overlooked as a mere irregularity.
The opinion of the learned Judges here expressed clearly supports the view that we have taken.
12. The result is that the order for sale passed by the Tenali Sub-Court in E. P. No. 57 of 1937 cannot be considered to be null and void and it therefore operates as res judicata. The appellant is accordingly precluded from raising the contentions which he has raised, however much they might be valid in themselves.
13. We accordingly hold that the appeal fails and must be dismissed with costs.