(Prayer: Appeal (disposed of on 28-2-1947) against the decree of the Court of the Subordinate Judge, Tenali dated 14-7-45 in A.S. No. 187 of 1944 preferred against the decree of the Court of the District Munsif, Tenali, dated 31-8-1944 in O.S. No. 215 of 1941.)

This second appeal has been referred to a Full Bench by Sir Lionel Leach, C.J. and Lakshmana Rao, J. The order of reference dated January 9, 1947 is as follows:

The question which arises in this appeal is one of considerable importance. There is a Bench decision of this Court which is directly in point Veerappa Chetti v. Ramaswami Chetti (43 Mad. 135 [LQ/MadHC/1919/175] =11 L.W. 232). The learned Advocate General has, however, submitted that the judgment requires reconsideration in view of the observations of the Full Bench in Ramier v. Muthukrishna Aiyar (55 Mad. 801 [LQ/MadHC/1932/11] =35 L.W. 742 (F.B.). He has contended that in as much as a trial Court retains jurisdiction in spite of a notification transferring the jurisdiction to another Court, the same principle should apply to a Court to which a decree is sent for execution when the alteration in jurisdiction takes place after the Court is seized with the case. The question is one which may often arise and the properties here are of a very considerable value. In these circumstances we direct that the appeal be placed before a Full Bench.

Shortly, the circumstances giving rise to the appeal are:

When the Court which passes a money decree transmits the decree to another Court for execution and when an execution petition is pending for attachment and sale of immoveable property belonging to the judgment-debtor situate within the territory of the transferee Court and after an order for attachment has been made by that Court, the property is removed from the territory of the transferee Court to another Court, whether:

(1) the transferee Court can make an order for sale of the property by Court auction so as to give a good title to the purchaser;

(2) If the transferee Court has no jurisdiction but the judgment-debtor does not take objection to jurisdiction at the time of the order for sale and during the execution proceedings, a judgment-creditor in execution of a decree in another suit, seeking to attach and sell the property can question the jurisdiction of the Court, by which the property was sold, and the validity of the sale.

The relevant facts can now be stated. On July 7, 1931, a money decree was passed against one, Venkata Subbiah, by the Court of the District Munsif of Guntur. The decree was transferred to the Court of the District Munsif of Bapatla for execution. On February 6, 1933, an execution petition was filed in the Bapatla Court for attachment and sale of immoveable property belonging to the judgment-debtor situate within the territory of that Court. On February 7, 1933, an order for attachment was made. On June 22, 1933, the Court ordered sale of the property to take place on August 10, on which date it was sold at a Court auction to the appellants. The sale was confirmed on September 16, and a sale certificate was issued on November 16, 1933 by the Bapatla Court in favour of the appellants. Meanwhile, on May 9, 1933, after the Bapatla Court had made the order for attachment but before it ordered the property to be sold, a Government notification was issued transferring to the District Munsifs Court of Tenali, as from May 29th the territory in which the property was situated. The judgment-debtor did not take objection against the jurisdiction of the Bapatla Court at any stage of the execution proceedings. On March 18, 1938, the respondents obtained, in appeal to the High Court from the Subordinate Judges Court of Guntur, a decree for specific performance of an agreement for the sale of some property (not the property the subject of the present appeal), mesne profits and costs against Venkata Subbiah and others; in respect of the money portion of this decree, it was transferred to the Bapatla Subordinate Court for execution, as the property in suit subsequently was re-included in the territory of that Court. The property was attached, the appellants preferred a claim against the attachment by virtue of their purchase in 1933. This claim was allowed. On September, 4, 1941, the suit out of which this appeal arises, was instituted in the District Munsifs Court of Tenali by the respondents against the appellants to set aside the order in the claim petition. The suit was decreed in the respondents favour and an appeal by the appellants to the Court of the Subordinate Judge of Tenali was dismissed on July 14, 1945. This is the appellants (defendants in the suit) second appeal against the decision of the lower Courts.

The Notification dated May 9, 1933, provides, so far as relevant for the present consideration, as follows:

In supersession of all previous notifications, regarding territorial jurisdiction of the Courts of the District Munsifs in the Guntur District, the High Court hereby directs and notifiesthat from and after 29th May 1933 the Courts of the District Munsifs in the said District shall have and exercise local jurisdiction as shown below:

(2) District Munsifs Court, Tenali

(v) Ponnur Firka

(6) Chebrole.

The property in question is situate in Chebrole.

The notification is expressed to be in supersession of all previous notifications by which, inter alia , jurisdiction was conferred upon the Bapatla Court in respect of immoveable property in Chebrole. It follows that, on and from May 29, 1933, the property in question was removed from the territorial jurisdiction of the Bapatla Court, it became part of the territory of the Tenali Court, which thenceforth had jurisdiction with respect to it.

Section 39 of the Code of Civil Procedure enacts that:

(1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court.

(b) if such person (the judgment-debtor) has not property within the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court;

(2) The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

Since Sub-S. 1 of the section requires a decrial Court to send its decree to another Court for execution when a judgment-debtors property is within the jurisdiction of that Court, it must follow that a decrial Court cannot itself execute against property outside its own territory; if it could do so transmission would be unnecessary. Further manifestation of this proposition is found in Sub-S. 2 which enables a decrial Court suo motu to transmit its decree for execution to a subordinate Court; but only to one of competent jurisdiction; this must mean a Court which has jurisdiction, that is to say, a Court within whose limits the property against which execution will lie is situate.

Section 42 of the Code enacts that, The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself.

Since a decrial Court can execute only in respect of property lying within its territory, it follows that that is the extent of a transferee Courts jurisdiction.

The Code provides two exceptions to the above restriction upon the power of a Court to execute:

(a) Where a suit is to obtain relief respecting, compensation for, or wrong to, immoveable property situate within the jurisdiction of different Courts, S. 17 allows a suit to be instituted in any Court within whose territory any portion of the property is situate; since such Court has jurisdiction to entertain such suit, it has also jurisdiction to execute against the outlying property, in respect of which it can pass a decree;

(b) Under O. 21, R. 3 of the Code, where immoveable property forming one estate is situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate.

The above provisions of the Code would be necessary if a Court could execute a decree against outlying property and the presence in the Code of those enactments manifests the ordinary restriction upon a Courts powers of execution.

Now returning to the facts of the present case. When the decree of 1931 was sent by the Guntur Court to the Bapatla Court for execution, the property in question was within the territory of the latter Court and the transmission complied with the provisions of S. 3

9. The state of affairs regarding location of the property was the same when the execution petition was presented and the order for attachment of the property was made by the Bapatla Court in February 1933. When, however, that Court made the order for sale in June 1933, sold the property in August and issued the sale certificate in November 1933, the property had ceased to be within its territorial jurisdiction, having been transferred to the Tenali Court.

Subject to what hereinafter appears, since a Court, save for the two exceptions above mentioned, which are not in point in the present instance, has not jurisdiction to execute in respect of property which is situate outside its territory, the Bapatla Court had no jurisdiction to make the order for sale of the property in question and the sale of it was effected without lawful authority.

The learned Advocate General, on behalf of the appellants, contended that, upon presentation of a petition in execution of a decree in respect of property situate within the territory of the Court to which it is presented, thereby that Court takes cognizance of its subject matter and has seisin of the property against which execution is sought; the removal of the property from the territorial jurisdiction of that Court, before an order for sale is made, does not deprive it of jurisdiction to execute the decree, but it retains jurisdiction as if the property had remained within its territory. Reliance for this proposition was placed upon Chockalingam Pillai v. Velayudha Mudaliar (47 M.L.J. 448) and Ramier v. Muthukrishna Aiyar (55 Mad. 801 [LQ/MadHC/1932/11] =35 L.W. 742 (F.B.).

In Chockalingas case (47 M.L.J. 448) a mortgage suit was instituted in a Court; thereafter, the hypothec was removed from its territorial jurisdiction; later, a final decree for sale was passed by the Court. In a suit brought to set aside the decree on the ground that it was void for want of jurisdiction, the finding was that the mortgage decree was valid. After referring to some authorities which held that the withdrawal of jurisdiction from a Court does not affect suits which have been instituted in it, Phillips, J. observed, at page 451 of the report, that, The jurisdiction of a Court consists in its power to entertain suits and when once a suit has been properly entertained, it is difficult to understand how that jurisdiction is removed unless it is specifically so done by the order of a competent authority. Once the suit has been entertained, the remaining proceedings taken therein are not taken by reason of any particular territorial jurisdiction but in exercise of the powers vested in the Court to try suits generally and consequently the only time at which the territorial jurisdiction comes into operation is at the time of filing the suit. Once the Court has seisin of the case, it has jurisdiction to try it to its conclusion unless there is any reason for holding that that jurisdiction has been removed.

The learned Judge then referred to S. 21 of the Code, which provides that, unless objection is taken to the place of suing at the earliest possible opportunity, no objection in that behalf, shall be allowed by any appellate or revision Court, and, at page 452, he observed that the section has been extended in Zamindar of Ettayapuram v. Chidambaram Chetty (43 Mad. 675) [LQ/MadHC/1920/140] , to execution proceedings. The decision in Zamindar of Ettayapurams case was that if a party does not raise objection to jurisdiction when a preliminary mortgage decree is made absolute, i.e., when the order for sale of property is made, he is not entitled to plead in execution that the order was passed without jurisdiction. At page 686 of the report Sir John Wallis C.J. observed that the effect of S. 21 is that objections which the appellate or provisional Court is thereby precluded from allowing must be considered cured for all purposes unless they were taken before the passing of the decree in the original Court. It was not held that S. 21 applied simplicities to execution proceedings but the decision was that it applied to a suit in which objection could have been taken to jurisdiction before a decree had been passed and that the failure to take objection in the suit precluded it being done at any later stage, including proceedings in execution. S. 21 refers to objection as to a place of suing. An execution petition is not a suit and its presentation is not suing. In Chockalingas case a suit was instituted in a Court which, at the date of institution, had jurisdiction to entertain the suit and thereby the Court obtained seisin of the suit and its subject-matter. The subsequent proceedings in the suit were in exercise of the powers vested in the Court to try the suit; those powers were not taken away by the subsequent removal from its territory of the property. A Court does not obtain seisin of the property which is the subject of an execution petition upon its presentation; the pres negation of an execution petition is not suing. An order for attachment of property confers no rights upon the execution petitioner; all it does is to make a subsequent private transfer or delivery of the property void against all claims enforceable under the attachment (Vide S. 64 of the Code).

The decree, in the present case, was sent for execution to the Bapatla Court because, at that time, the property was within its territory and, by reason of that circumstance, it had jurisdiction to order execution against the property. It had not lost its jurisdiction when the execution petition was presented to it and when it made the order for attachment. But, the presentation of the petition did not give the Court seisin over the property nor did it confer any right upon the execution creditor when it made the order for attachment. When the Bapatla Court made the order for sale, it had no longer jurisdiction over the property so as to be able to execute the decree. S. 39 is clear and unambiguous in its meaning and effect; a Court passing a decree must have territorial jurisdiction in respect of property against which it can order execution; if it has not got that jurisdiction it cannot order execution and must send the decree for that purpose to the Court competent to do so. S. 42 confers like powers in execution upon a transferee Court and, it will follow, such Court is subject to the same limitation as the Court which passed the decree. Whilst I agree with the observation of Phillips J. in Chockalingas case , which I have quoted, with respect, I am unable to subscribe to his opinion, that the principles relating to a suit were extended in Zamindar of Ettayapuram case to execution proceedings.

The other authority upon which the learned Advocate-General relied is Ramiers case , a decision of a Full Bench. There, a final decree was passed in a mortgage suit; subsequently the Court ceased to have territorial jurisdiction over the mortgaged property which was removed to another Courts territory. The actual decision in that case is that the latter Court could not execute the decree without it being transmitted for that purpose by the Court passing the decree. In the judgment of the Court delivered by Ramesam J., the effect is discussed of the notification by which the transfer of the territory had been made and whether, within the contemplation of S. 150 of the Code, the business of the Court had been transferred. It was held there had been no such transfer. In the present case, the notification did not transfer the business from Bapatla to Tenali and, it was argued for the appellants, that the former Court consequently retained jurisdiction to dispose of the execution petition which had been presented to it before the transfer of the property from the Courts territory.

In this respect the observations previously made regarding the position and the powers of a Court with respect to a pending suit and a pending execution petition are in point and do not require repetition. Ramiers case would be an authority in the appellants favour if the principles relating to a suit also applied to an execution petition which, in my view they do not. Incidentally, it is to be noticed that, in Ramiers case a decree for sale was passed by the Court before its territorial jurisdiction was removed; in the present case the order for sale was made after the removal.

A decision of a Bench of this Court, directly in point, is found in Kasi Viswanatha Chetti v. Murugappa Chetti (33 M.L.J. 750). There, a decree of a Burma Court was transmitted for execution to the District Court of Ramnad which sent it to the Subordinate Court of Ramnad for that purpose. In the judgment it was presumed that, when the decree was sent to the Subordinate Ramnad Court, that Court had territorial jurisdiction over the property against which execution by way of sale was sought. The property was transferred to the territory of the Sivaganga Court and thereafter the Ramnad Court ordered sale of it in execution and it was sold. It was held that the sale was invalid because, on the date when it took place, the Ramnad Court had ceased to have territorial jurisdiction over the property. At page 752 of the judgment of the Court it was observed that if the lower Court was at any time competent to execute the decree in virtue of any transfer to it prior to 15th April 1913 (when the property was transferred to the territory of the Sivaganga Court) it forfeited its competence to keep the suit property under attachment or to sell it from that date. That decision was given some 30 years ago, no authority has been forthcoming in which its correctness has been challenged, it certainly has not been overruled. It was referred to in Veerappa Chetti v. Ramaswami Chetti (43 Mad. 135 [LQ/MadHC/1919/175] =11 L.W. 232) which held that a Court to which a decree is sent for execution has no jurisdiction to order either attachment or sale of immoveable property in execution if, at the time of the order, the Court had no territorial jurisdiction over the property. Khirod Chandra Ghosh v. Pancha Gopala Sadhu Khan (18 Pat. 670) followed Veerappa Chettis case (43 Mad. 135 [LQ/MadHC/1919/175] =11 L.W. 232) and held that a sale by an executing Court of a property which is outside its territorial jurisdiction is a nullity.

I can find no reason to disagree with the last three authorities cited which, in my opinion, correctly lay down the principle of law decided by them. The position of a suit is different from that of an execution petition regarding property which is the subject matter of the respective proceedings pending at the time of removal from the territorial limits of its jurisdiction. A suit is not governed by and subject to Ss. 39 and 42 of the Code which require the Court passing a decree or the Court to which it is transmitted for execution, as the case may be, to have property within its territory so as to confer jurisdiction to order execution against the property. A Court cannot make a valid order for sale in execution unless, at the time the order is made, the property is within its territory. Any sale effected pursuant to an order made without jurisdiction is not in conformity with the requirements of the Code and is invalid.

It follows, that the sale by the Bapatla Court to the appellants was one which took place without lawful authority; it is a nullity and does not prevent the respondents executing their decree against the property.

Since the sale to the appellants was made by a Court not having jurisdiction in that behalf and the sale was a nullity the second question does not require to be answered for the purpose of disposing of this appeal. But it is convenient shortly, to express an opinion with regard to it.

It was argued that objection to the jurisdiction of the Bapatla Court should have been taken by the judgment-debtor in the execution proceedings and, since this was not done, the respondents, who seek to execute another decree against the property, cannot now take the objection and, by some doctrine of estoppels or waiver, they are prevented from asserting the Bapatla Courts want of jurisdiction. By this argument it is sought to apply the principle in S. 21 of the Code, upon which I have previously made some observations. Firstly, the respondents were not parties to the execution proceedings and they are not bound by the act or failure of any party thereto. Secondly, the appellants also, were not parties. The claims by the appellants and the respondents are not adverse to the judgment-debtor, they are adverse to each other, each claiming in right of the Judgment-debtor.

When a Court has not jurisdiction, no agreement or act of a party can confer jurisdiction which it does not possess. In Ramabhadra Raja Bahadur v. Maharaja of Jeypore (42 Mad. 813=10 L.W. 362 (P.C.) it was pointed out by the Judicial Committee at page 820 of the report that S. 21 does not cover an objection going to the nullity of an order on the ground of want of jurisdiction. In Veerappa Chettis case after referring to this decision of their Lordships of the Privy Council, Seshagiri Aiyar J. observed at page 140 of the report in that case, that S. 21 did not bind in terms persons like execution creditors.

With regard to property which has been sold in execution pursuant to an order made by a Court after its territorial jurisdiction over the property had been removed, Fazl Ali J. as he then was, observed at page 675 of the report in Khirod Chandra Ghoshs case that, It may be that the judgment-debtor himself may have made it impossible for himself owing to his conduct to assert that such a person has no title to the property but the fact remains that the property continues to be the property of the judgment-debtor.

Elsewhere at page 675 he said, If a Court which has no jurisdiction to sell a property, sells it, it is clear that the purchaser acquires no title to it.

In Richards v. Johnston (4 H. and N. 660) Pollack C.B. said, A sheriff who comes to seize the goods of a debtor, armed with a writ of execution in favour of a creditor, is not bound by estoppels which might have prevented the debtor himself from claiming the goods,

and Martin B. observed, No authority has been cited to show that a judgment-creditor is party or privy to the acts of the judgment-debtor. The fifa directs the sheriff to seize the goods of the debtor. The sheriff is a stranger to the debtor and the only question for him isAre these goods the goods of the debtor or not Therefore on this rule we must say that the sheriff and the execution creditor are not bound by the estoppels which would affect the execution debtor.

This decision was cited with approval by Lord Esher M.R. at page 457 in Richards v. Jenkins 1 . Reference to these two decisions of the Courts in England was made with approval in Veerappa Chettis case in which it was held that, although a judgment-debtor, who does not object to a confirmation of a sale by a Court making an order for sale when it had no jurisdiction, may be stopped from raising the question that the sale was a nullity, such estoppels does not operate against a subsequent purchaser of the same property in a sale by a Court of competent jurisdiction in execution of another decree against the same judgment debtor.

In the present case, whatever be the position of the judgment-debtor regarding the sale of the property by the Bapatla Court if he sought to have the sale set aside or made any claim to the property, upon which I express no opinion, the sale being a nullity and without jurisdiction, the judgment-debtor, in so far as the respondents are concerned, remained the owner of the property and the appellants did not obtain a title to it in the sale by the Court having no jurisdiction to sell. The respondents are not prevented from asserting the absence of jurisdiction in the Bapatla Court to make an order for sale and to sell the property.

For the reasons given, in my view, the appeal should be dismissed with costs. Advocates fees, Rs. 200.

Lakshmana Rao J: I agree.

Rajamannar J: I agree.