[This appeal came on for hearing on the 27th, 28th days of January 1920, and the 4th February 1920 before their Lordships Oldfield and Seshagiri Aiyar, JJ.]

Oldfield, J. - The first question for our decision is whether the decree under execution was passed by a Court having jurisdiction; and it is only necessary to state the facts to show that it was not. The suit O. S. No. 58 of 1899 was filed on a hypothecation in the Madura East Subordinate Court and a preliminary decree was passed there on 10th May 1900. Subsequently the Ramnad District was constituted by notification No. 304 at page 592, Fort St. George Gazette, Part I, dated 24th May 1910, and by another notifica tion No. 311 on page 593, the Madura East Court was abolished and the Subordinate Judges Court of Ramad was established with jurisdiction over the whole of Ramnad District, except the District Munsiff of Manamadura. The suit property lies in that Munsifi and it, not being assigned to any other jurisdiction, fell to that of the District Court, which was established on the same date by notification No. 305. In 1916 application was made for final decree to the Subordinate Court of Ramnad and the decree how under execution was passed there in 1917.

It is clear that the Subordinate Court of Ramnad has never had jurisdiction over the suit property, and could never have entertained the suit, in which the decree relating to it has been passed. It is argued that as notification No. 311 refers to the Ramnad Subordinate Court as established, instead of the Madura East Subordinate Court, the former must be taken to have succeeded to the pending business of the latter. But, even if it were shown that Government have power by notification to regulate the distribution of judicial business in this manner, it would still be impossible to deduce an intention to do so from the words used. The lower Court contented itself with opining that the transfer of jurisdiction from the Ramnad Subordinate Court to the Ramnad District Court over the area in question did not take away the jurisdiction of the former over pending business; but the argument is vitiated by the misconception which runs through the judgment that the Ramnad Subordinate Court passed the preliminary decree and we have in any case been shown no authority for the proposition of law, which is involved. The proceedings after the preliminary decree were proceedings in execution. Hussain v. Karim (I.L.R., 39 Mad., 544) [LQ/MadHC/1915/148] . They were therefore governed by Sects. 37 and 38, Civil Procedure Code, and, as there is no question of the decree having been sent for execution to the Ramnad Subordinate Court, it could not execute it, because it did not pass it and because at the time of the application for final decree, it could not have had jurisdiction to try the suit, in which the preliminary decree had been passed. There is no doubt that the final decree, in respect of which the present application is made, was passed without jurisdiction.

We have next to deal with the more difficult contention advanced by the respondent that appellant cannot take objection to the decreeing Courts jurisdiction, because he did not do so at the earliest opportunity. Appellant was joined as 16th defendant by the Ramnad Subordinate Court, when the final decree was passed, as a purchaser of part of the suit property. But he did not appear or state his objections; nor did he attack the jurisdiction of the Court, or rely on any plea except limitation, when in I. A. Nos. 293, 294 of 1917 he applied for a review of the order, which had been passed. The objection to the Courts jurisdiction was, in fact, taken for the first time in the present proceedings and the argument for respondents is that with reference to the decision in Gomatham Alamelu v. Komandur Krishnamacharlu (I.L.R., 27 Mad., 118), and Sect. 21, Civil Procedure Code, it cannot now be put forward.

It was decided generally in Haji Musa Haji Ahmed v. Purmanand Nursey (I.L.R. 15 Bom., 216), that the executing Court is entitled to enquire into the jurisdiction of the Court, which passed the decree; and some argument was addressed to us, regarding the policy of the law and the necessity for a strict interpretation of Sects. 18 and 21 and the corresponding Sect. 16 A in the former Code. The main objection, however, to their application to the facts before us was that, although they might deprive the party interested to object to the jurisdiction of his right to do so up to the termination of the proceedings, or of any connected appeal, they do not deprive him absolutely of his right, or bar its exercise at any later stage, such as that, which the present proceedings have reached. It is true that no such distinction was recognised or apparently suggested in Gomatham Alamelu v. Komandur Krishnamacharlu (I.L.R., 27 Mad., 118) and that decision was followed in Subbiah Naicker v. Ramanathan Chettiar (I.L.R., 37 Mad., 462 [LQ/MadHC/1914/25] at p. 470; s.c., L.W., 251), Velayutha Muppan v. Subramaniam Chetti (24 M.L.J., 70), and Venkatarama Vathiar v. Sambasiva Aiyar (10 L.W., 293), although, in the last mentioned case the question was of fraud at the trial and there was no question of execution. But the sections in question statedly relate only to suits and it is setteld law that Sect. 141 cannot be invoked as authorising the extension of the procedure in regard to suits to execution. The point is of importance and we doubt whether Gomatham Alamelu v. Komandur Krishnamacharlu (I.L.R., 27 Mad., 118), was rightly decided. We therefore refer for the opinion of a Full Bench the questions set out in my learned brothers judgment.

Seshagiri Aiyar, J.- The decree under execution is a very old one. In O. S. N. 58 of 1899, what is alleged by the respondent to be the preliminary decree was passed on the 10th May 1900 by the Madura Sub-Court, East, which then had jurisdiction over the mortgaged property. Subsequently there was a bifurcation of the District. In the division, all the taluks over which the Madura Sub-Court East had original jurisdiction except the District Munsifi of Manamadura were transferred to the Ramnad Sub-Court. About the same time, to the District Court of Ramnad was assigned the two revenue Sub-Divisions of Devakottah and Ramnad. Devakottah included the Manamadura District Munsifi. The notification of the Government of Madras was in May 1900. On the 20th of November 1910, an application was made to the Sub Court of Ramnad for the final decree and the order was passed on the 29th March 1917.

The appellant before us obtained a money decree against the mortgagors in 1909. The equity of redemption was put up to auction and purchased by him.

Another transaction should be mentioned. On the 1st August 1900, a usufructuary mortgage was executed by the mortgagors to the decree-holders in O. S. 58 of 1899 and to other decree-holders against the same judgment-debtors, with the object of enabling them to discharge all the encumbrances on the properties of the mortgagors, A suit was instituted on this mortgage. In S.A. No. 178 of 1912, the mortgage was held to be invalid. While the second appeal was pending, the purchaser of the equity of redemption obtained possession. This was in 1916. The present application is for sale of the mortgaged property in pursuance of the decree absolute in the suit of 1899.

Some important questions of law have been raised in the case. I must say that their consideration by the lower Court has by no means been adequate or satisfactory.

The first point relates to the jurisdiction of the Ramnad Sub-Court to pass the order absolute on the 19th March 19

17. On this question I feel no doubt. The District Judge is wrong in saying that the original decree was passed by the Ramnad Sub-Court. That decree was undoubtedly passed by the Madura Sub-Court, East. The question is whether the Ramnad Sub-Court which clearly had no territorial jurisdiction over the property was competent to pass the final decree.

Mr. Anantakrishna Ayyar chiefly relied upon the notification of the Government, which is in these terms:

The Governor-in-Council, having resolved to abolish the Court of the Subordinate Judge of Madura East, in the District of Madura and to establish instead a Subordinate Judges Court in the District of Ramnad hereby directs etc.

The learned Vakil contended that the expression instead must be regarded as expressing the intention of the Government that all the decrees passed by the Madura Sub-Court East, were to be considered as if they were passed by the newly constituted Sub-Court of Ramnad. Apart from the question whether it is competent to the Executive Government to confer jurisdiction in this way, I am unable to construe the word instead as suggested. All that the notification meant was that the congestion of work which would result from the abolition of the Madura Sub-Court East, would be relieved by the constitution of the new Court.

On the question of law, I feel no difficulty in holding that the Ramnad Sub-Court had no power to pass the decree absolute. It was held in Subbiah Naicker v. Ramanathan Chettiar (I.L.R., 37 Mad., 462 [LQ/MadHC/1914/25] ; s.c., 1 L.W., 251) that a Court which has no territorial jurisdiction cannot attach and sell property. In Veerappa Chetti v. Ramasami Chetti (11 L.W., 232) that case and other cases were fully considered and it was pointed out that a Court which has no territorial jurisdiction cannot sell property although the decree for sale was passed by it, when it had jurisdiction.

The Full Bench decision in Seeni Nadan v. Muthusamy Pillai (I.L.R., 42 Mad., 821; s.c., 11 L.W., 63) does not affect this conclusion. On the other hand, the actual decision in Subbiah Naicker v. Ramanathan Chettiar (I.L.R., 37 Mad., 462 [LQ/MadHC/1914/25] ; s.c., 1 L.W., 251) which was not overruled by the Full Bench supports the view we are taking.

It was contended for the appellant that an application for an order absolute is not an application in execution and that therefore it was barred by limitation, when it was made to the Ramnad Sub-Court. In this Presidency, from the Full Bench decision in Mallikarjunadu Setti v. Lingamurti Pantulu (I.L.R., 25 Mad., 244) it has always been held that an application for a final decree under the Transfer of Property Act was an application in execution. The latest decision upon that point is Hussain v. Karim (I.L.R., 39 Mad., 544) [LQ/MadHC/1915/148] where all the cases are reviewed. Reference may also be made to Munna Lal Parruck v. Surat Chunder Muckerji (19 C.W.N., 561). This contention must be overruled.

The main answer of Mr. Anantakrishna Aiyar to the plea of want of jurisdiction was that the appellant was estopped from raising this contention. His argument was that, as there was no demur to the Ramnad Sub-Court dealing with the application for an order absolute and as there was no appeal against the order, the appellant cannot raise it in execution. He relied upon the language of Sect. 21 of the Civil Procedure Code for this contention The plain terms of the section lend some support to his contention. He is also supported by Gomatham Alamelu v. Komandur Krishnamacharlu (I.L.R., 27 Mad., 118), and Velayutha Muppan v. Subramaniam Chetti (24 M.L.J., 70).

On the other hand, certain observations in the decision of the Judicial Committee in Ramabhadra Raju Bahadur v. Maharaja of Jeypore (I.L.R., 42 Mad., 813; s.c., 10 L.W., 362), and the scheme of the Code suggest that the Legislature should not be presumed to have enacted that, by not objecting to jurisdiction, the parties are for ever concluded by the order passed. The result of such a view would be that, if both the plaintiff and the defendant agree, a matter relating to property outside the Presidency and even outside India, can be validly decided by our Courts. I think that as a conclusion like this is likely to affect seriously the administration of justice, it demands careful examination.

The arrangement of sections in the Code of Civil Procedure is against interpreting Sect. 21 in the way suggested by the learned Vakil for the respondents. Sects. 16 and 17 deal with suits relating to immoveable property. Sect. 18, Cl. 1, refers to uncertainty as to local jurisdiction and provides for recording a statement and then proceeding with the suit. Cl. 2 empowers a party if there is no such record to contest the matter in appeal, if there has been a failure of justice. Sect. 19 deals with jurisdiction regarding suits for moveables. Sect. 20 deals with cases of contract and refers to the accrual of the cause of action in either the place where the offer is made or the acceptance was concluded. Then comes Sect. 2

1. The contention of the learned Vakil for the appellant that this section is confined to cases relating to moveable property and to contracts and should not be extended to suits relating to immoveable property does not appear to me to be far-fetched. Whereas Sect. 18 speaks of local limits of jurisdiction, Sect. 21 speaks of the place of suing, and there is some justification from the language of the Judicial Committee for the suggestion that jurisdiction was not intended to be synonymous with the place of suing. The observations in Haji Musa Haji Ahmed v. Purmanand Nursey (I.L.R., 15 Bom., 216), also support this view.

I feel considerable doubt whether Sect. 21 of the Act should be read as enacting that in all cases where there is no objection to jurisdiction, the party is not entitled to question it, at any subsequent stage of the proceedings.

In this connection, I may refer to the argument that it is only in cases where jurisdiction depends on the ascertainment of facts that the theory of acquiescence should be invoked. The reference to the objection being taken before the settlement of issue supports this contention. The general principle being that want of jurisdiction would make an adjudication by a Court a nullity, Sect. 21 which must be regarded as an exception to this rule should be construed as referring only to cases in which want of jurisdiction has to be pleaded and to be established by evidence. But where every body must be presumed to be acquainted with a notification like the one now in question, there can be no necessity for allegation or proof.

There is one other matter which ought to be noticed and that is that Sect. 21 is not applicable to execution proceedings. I am not much impressed by the argument. The principle underlying the section, even though the section may not in terms be applicable, should be extended to execution proceedings also. Observations to this effect are to be found in Veerappa Chetti v. Ramasami Chetti (11 L.W., 232).

However, even this question is not altogether free from doubt.

I think therefore that the following questions should be referred for the opinion of the Full Bench.



1. Whether Sect. 21 of the Code of Civil Procedure governs cases of want of territorial jurisdiction

2. Whether Sect. 21 is applicable to execution proceedings

3. And whether a party who does not raise objection to jurisdiction when a decree is made absolute is not entitled to plead in execution that the order was passed without jurisdiction

John Wallis, C.J.

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 19

17. 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.

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.

I do not think the recent decision of the Privy Council in Setrucherla Ramabhadraraju v. Maharaja of Jeypore (1919) L.R. 46 I.A. 151 is opposed to this view of the scope of Section 2

1. 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.

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.

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.

Without referring to the statement of objects and reasons, which is not permissible, Krishna Ayyangar v. Nellaperumal Pillai (1919) L.R. 47 I.A. 33 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 (1919) I.L.R.

44. 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.

I agree.

Couth Trotter, J.

I agree.