RADHEY SHAM Vs. GOBIND LAL

JUDGEMENT

(1.) This revision petition is directed against the order of the learned Executing Court whereby he held that the decree will not be executed since it was not passed by the competent Court.

(2.) Brief facts:- A preliminary decree for partition was granted by Shri S.K.Kapoor, Subordinate Judge II Class. The valuation of the suit for the purpose of Court fee and jurisdiction was fixed at Rs. 18,000/-. Shri S.K.Kapoor had no pecuniary jurisdiction to try the suit. The learned Executing Court came to the conclusion that since the decree was passed by the Court which had no pecuniary jurisdiction, the decree was illegal. The decree holder has come up in the revision petition assailing the correctness of the order of the learned Executing Court.

(3.) The view taken by the learned trial Judge is unsustainable. Section 21 of the Code of Civil Procedure enacts that no objection to the place of suing should be allowed by the appellate or revisional Court, unless there was a consequent failure of justice. The objection regarding pecuniary jurisdiction was not raised in the suit by the contesting defendants it could not be raised in the execution proceedings. This matter came up for consideration before the apex Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, wherein it was held thus :-