TMI Blog2019 (1) TMI 1972X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The High Court was manifestly in error in coming to the conclusion that it was within the jurisdiction of the executing court to decide whether the decree in the suit for partition was passed in the absence of territorial jurisdiction - the High Court has manifestly acted in excess of jurisdiction in reversing the judgment of the executing court which had correctly declined to entertain the objection to the execution of the decree on the ground of a want of territorial jurisdiction on the part of the court which passed the decree. By the impugned order, the High Court has directed the executing court to entertain an objection to the validity of the decree for want of territorial jurisdiction. Such an objection would not lie before the executing court. Moreover, the objection that the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit was instituted, the claim was confined to a 1/4th share. During the pendency of the suit, the mother died. As a result, there was a modification in the share of the three sisters at 1/3rd each. On 18 December 2013, the Subordinate Judge at Ranchi passed a supplementary final decree in view of the death of the mother of the Appellant and the first Respondent on 9 February 1996. 4. On 12 May 2014, the Appellant filed proceedings for the execution of the final decree at Ranchi.4 On 1 January 2015, the first Respondent filed an objection Under Section 47 of the Code of Civil Procedure contending that the decree dated 13 June 1990, the final decree dated 5 April 1991 and the supplementary final decree dated 18 December 2013, were without jurisdiction and therefore, a nullity. On 10 March 2015, the first Respondent challenged the decree dated 13 June, 1990 in appeal Under Section 96 of the Code of Civil Procedure.5 The appeal is pending. 5. On 10 March 2016, the executing court dismissed the objections of the first Respondent Under Section 47 of the Code of Civil Procedure with the following observations: The decree holder is entitled to get the fruits of the decree an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in appeal. Consequently, the High Court was in error in directing the executing court to deal with such an objection. Moreover, it was urged that the Respondent was aware of the proceedings which were taking place, which is evident from the following circumstances: (i) The Respondent had filed a title suit before the Court at Ranchi which was dismissed for non-prosecution on 22 July 2003; (ii) The Respondent filed a title suit before the Court at Varanasi which was dismissed Under Order VII, Rule 11 of the Code of Civil Procedure on 12 April 2005; and (iii) The 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. Based on these circumstances, it was urged that the objection which has been allowed to be raised in execution is merely an effort to delay and obstruct the implementation of the decree which has been passed in the suit for partition. 8. On the other hand, Mr. S.R. Singh, learned senior Counsel appearing on behalf of the Respondents, has urged the following submissions: (i) An objection to the lack of territorial jurisdiction is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied. 10. The learned Counsel appearing on behalf of the Respondents has submitted that the objection as to the lack of territorial jurisdiction was raised in the written statement before the trial court. But evidently the suit was decreed ex-parte after the Respondents failed to participate in the proceedings. The provisions of Section 21(1) contain a clear legislative mandate that an objection of this nature has to be raised at the earliest possible opportunity, before issues are settled. Moreover, no such objection can be allowed to be raised even by an appellate or revisional jurisdiction, unless both sets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Section 99 therefore gives no protection to decrees passed on merits, when the courts which passed them lacked jurisdiction as a result of overvaluation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to the jurisdiction of a court based on overvaluation or undervaluation shall not be entertained by an appellate court except in the manner and to the extent mentioned in the section. It is a self-contained provision complete in itself, and no objection to jurisdiction based on overvaluation or undervaluation can be raised otherwise than in accordance with it. With reference to objections relating to territorial jurisdiction, Section 21 of the Code of Civil Procedure enacts that no objection to the place of suing should be allowed by an appellate or Revisional Court, unless there was a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Sections 21 and 99 of the Code of Civil Procedure and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the suit was precluded from raising an objection to jurisdiction of that court at the appellate stage. This Court concluded thus: 16. If the law were that the decree of a court which would have had no jurisdiction over the suit or appeal but for the overvaluation or undervaluation should be treated as a nullity, then of course, they would not be stopped from setting up want of jurisdiction in the court by the fact of their having themselves invoked it. That, however, is not the position Under Section 11 of the Suits Valuation Act. Thus, where the defect in jurisdiction is of kind which falls within Section 21 of the Code of Civil Procedure or Section 11 of the Suits Valuation Act 1887, an objection to jurisdiction cannot be raised except in the manner and subject to the conditions mentioned thereunder. Far from helping the case of the Respondent, the judgment in Kiran Singh (supra) holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subject matter. An objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity. In Hasham Abbas Sayyad v. Usman Abbas Sayyad (2007) 2 SCC 355, a two judge Bench of this Court held thus: 24. We may, however, hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure, and a decree passed by a court having no jurisdiction in regard to the subject-matter of the suit. Whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the question does not relate to the territorial jurisdiction or Under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding. 15. In this background, we are of the view that the High Court was manifestly in error in coming to the conclusion that it was within the jurisdiction of the executing court to decide whether the decree in the suit for partition was passed in the absence of territorial jurisdiction. 16. The Respondent has filed a first appeal (First Appeal No. 43/2015) where the issue of jurisdiction has been raised. We must clarify that the findings in the present judgment shall not affect the rights and contentions of the parties in the first appeal. 17. The High Court has manifestly acted in excess of jurisdiction in reversing the judgment of the executing court which had correctly declined to entertain the objection to the execution of the decree on the ground of a want of territor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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