LUIZ Vs. ABDUL RAHIMAN

JUDGEMENT

(1.) The short question that arises for consideration in this civil revision petition is whether a decree passed by a court having no territorial jurisdiction over the subject matter of the suit is liable to be thrown out by the execution court, despite the fact that the defendant had not raised the plea of want of jurisdiction at the Trial Court.

(2.) The facts of the case missing out details are as follows. The plaintiff filed a suit for realisation of the amount due under a chitty transaction. It seems that the defendants had executed a mortgage deed in respect of property situated within the jurisdiction of the Munsiff's Court, Perumbavoor as a collateral security for the due payment of the chitty amount. The defendants were residing within the territorial jurisdiction of Munsiff's Court, Ernakulam. The defendants defaulted the payment and the plaintiff filed a suit before the Munsiff's Court, Ernakulam. The plaintiff bad sought for a charge upon the immovable property given as security. The defendants filed written statement and contested the suit. They did not raise any plea of want of jurisdiction. The suit was decreed and a charge also was granted for the immovable property for the decree amount. Plaintiff filed execution application before the Munsiff's Court, Ernakulam for realisation of the amount. As the property upon which charge was granted was situated within the local of limits Munsiff's Court, Perumbavoor, the execution petition was transferred to that court, for further steps.

(3.) The suit in question was essentially a suit for recovery of money due under a chitty bond. Since this suit is essentially for recovery of money under a chitty bond, the Munsiff's Court, Ernakulam had also got jurisdiction to try the suit as the defendants were residing within the jurisdiction of that court. It is true that in a decision of this Court in Rosy Joseph v. Union Bank of India (AIR 1978 Kerala 209) this Court held that in a case which is directly governed by S.16(c) of the C.P.C., S.20 cannot be called in aid and it is not permissible for the plaintiff to institute a suit in any other court than the one within the local limits of whose jurisdiction the mortgaged properties are situate. Even if it is argued that the Munsiff's Court, Perumbavoor alone had jurisdiction to try this case, such a plea was not raised by the defendants at the time of the trial of the case. As the defendants did not raise that objection in the earliest opportunity, they are not entitled to raise the same at a later stage. S.21 of the C.P.C. will be a total bar to raise such a plea. S.21 reads: