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TMI Blog2019 (1) TMI 1972X X X X Extracts X X X X X X X X Extracts X X X X ..... e the High Court of Judicature at Patna questioning the jurisdiction of the Ranchi Courts. The petition was disposed of by the High Court on 10 May 1989 with the direction that any objection to jurisdiction would be decided by the Special Subordinate Judge at Ranchi as a preliminary issue. A preliminary decree was passed ex-parte on 13 June, 1990 granting the Petitioner her extent of 1/4th share in the Schedule property. A final decree was passed on 5 April 1991 confirming the preliminary decree passed on 13 June, 1990. One of the Defendants in the partition suit filed a title suit2 before the Court of Subordinate Judge, Ranchi. On 22 July 2003, the suit was dismissed for non-prosecution. The first Respondent filed a title suit3 before the Court of Subordinate Judge at Varanasi which was dismissed Under Order VII, Rule 11 of the Code of Civil Procedure on 12 April 2005 on the ground of being barred Under Section 21A of the Code of Civil Procedure 1908 ("CPC"). The first Respondent filed an application Under Order IX Rule 13 in respect of the title suit filed at Ranchi which was also dismissed as withdrawn on 19 February 2008. Since the mother of the Appellant was alive when the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to entertain the partition suit could have been raised Under Section 47 of the Code of Civil Procedure. The High Court held thus: The executing court fell in serious error in law where it has observed that the executing court will have no jurisdiction to entertain an objection as to the validity of the decree on the ground of jurisdiction. Under Section 47 Code of Civil Procedure, the Petitioner has not challenged the validity of the decree on merits, rather the plea taken by her is that the decree cannot be executed for it has been passed by a court which had no territorial jurisdiction to entertain Partition Suit No. 154 of 1985. The application raising the objection was hence restored to the file of the executing court for disposal. 7. Assailing the judgment of the High Court, these proceedings have been instituted. Mr. Mukul Rohatgi, learned senior Counsel appearing on behalf of the Appellant submitted that an objection to territorial jurisdiction does not relate to the inherent jurisdiction of the civil court. Such an objection has to be addressed before that court and in the event that the court rejects such an objection, it must be raised before the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of first instance at the earliest possible opportunity and in all cases where issues are settled on or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. Sub-section (1) of Section 21 provides that before raising an objection to territorial jurisdiction before an appellate or revisional court, two conditions precedent must be fulfilled: i) The objection must be taken in the court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in respect of the subject matter of the action, strikes at the very authority of the court to pass the decree and cannot be cured even by the consent of the parties. The Court then proceeded to examine the effect of Section 11 of the Suit Valuation Act 1887 on this fundamental principle. This Court held thus: 7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that a court which had no jurisdiction over a suit or appeal had exercised it by reason of overvaluation or undervaluation, should not be entertained by an appellate court, except as provided in the section...a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for overvaluation or undervaluation, is not to be treated as, what it would be but for the section, null and void, and that an objection to jurisdiction based on overvaluation or undervaluation, should be dealt with under that Section and not otherwise. The reference to Section 578, now Section 99 Code of Civil Procedure, in the opening words of the Section is significant. That section, while providing that no decree shall be reversed or varied i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aluation had been given is itself a matter of prejudice, then the decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words "unless the overvaluation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits" would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in an appellate court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the Section results. And the prejudice envisaged by that Section therefore must be something other than the appeal being heard in a different forum. A contrary conclusion will lead to the surprising result that the Section was enacted with the object of curing defects of jurisdiction arising by reason of overvaluation or undervaluation, but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the Section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide, under Clause 12 of the Letters Patent, the correctness of the procedure or of the order granting the leave could be questioned by the Defendant or the objection could be waived by him. When he agreed to refer the matter to arbitration through court, he would be deemed to have waived his objection to the territorial jurisdiction of the court, raised by him in his written statement. It is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure. In Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005) 7 SCC 791, this Court held that an objection to territorial and pecuniary jurisdiction has to be taken at the earliest possible opportunity. If it is not raised at the earliest, it cannot be allowed to be taken at a subsequent s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to territorial jurisdiction which does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. An executing court cannot go behind the decree and must execute the decree as it stands. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (1970) 1 SCC 670, the Petitioner filed a suit in the Court of Small Causes, Ahmedabad for ejecting the Defendant-tenant. The suit was eventually decreed in his favour by this Court. During execution proceedings, the Defendant-tenant raised an objection that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was a nullity. The court executing the decree and the Court of Small Causes rejected the contention. The High Court reversed the order of the Court of Small Causes and dismissed the petition for execution. On appeal to this Court, a three judge Bench of this Court, reversed the judgment of the High Court and held thus: 6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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