RAJA JAGA VEERA RAMA VENKATESWARA ETTAPPA NAYAKAR AVERGAL, ZAMINDAR OF ETTIYAPURAM Vs. CHIDAMBARAM CHETTY

JUDGEMENT

(1.) In May 1900 the plaintiff duly instituted the present suit in the Subordinate Court of Madura West, where the mortgaged property was situated, and obtained a decree under Section 88 of the Transfer of Property Act. In May 1910, this Court was abolished, and, by virtue of Section 37 of the Code of Civil Procedure, this suit was transferred by operation-of law to the newly constituted District Court of Ramnad, as the place where the mortgaged property was situated was within the jurisdiction of that Court and was not within the jurisdiction of the newly constituted Subordinate Court of Ramnad. In 1916 the plaintiff applied to the Subordinate Court of Ramnad, which has, we have seen, had no jurisdiction over the suit, for a decree for sale under Order XXXIV, Rule 5 of the Code of Civil Procedure and obtained the decree in 1917. The mistake appears to have been occasioned by the fact that the new Subordinate Court of Ramnad was desorbed in the notification constituting it as created instead of the Subordinate Court of Madura West, whereas its territorial jurisdiction was more limited. The 16th defendant, who did not appear, applied for a review of the decree but not for want of jurisdiction, and his petition was dismissed as out of time. He did not appeal against the decree, as he might have done on the ground that it was made without jurisdiction or was erroneous or time barred. The plaintiff then filed Execution Petition No. 24 of 1914 on the District Court Ramnad, which apparently returned it for presentation, or sent it directly, to the Subordinate Court of Ramnad which had passed the final decree. It was filed in that Court as execution Petition No. 203 of 1017, and that Court thereupon transferred the decree for execution to the District Court of Ramnad within whose jurisdiction the mortgaged property is situated. These are the fasts which have given rise to the reference. As regards the first question, I am clearly of opinion that the provisions of Section 21 of the Code of Civil Procedure apply to all objections based on the alleged infringement of the provisions of Sections 16 to 18 of the Code of Civil Procedure as regards the institution of suits relating to immoveable property. The words "objection as to the place of suing" in their ordinary meaning include objections to the institution of the suit on the ground that the Court in which it was instituted had no jurisdiction over the immoveable property which was the subject of the suit; and the words "place of suing" are used in the heading prefixed to Section 15, as descriptive of the subject-matter of the provisions in Sections 15 to 20, as to the Courts in which suit?, including suits as to immoveable property, are to be instituted.

(2.) I do not think the recent decision of the Privy Council in Setrucherla Ramabhadraraju v. Maharaja of Jeypore 51 Ind. Cas. 185 : 42 M. 813 : 17 A.L.J. 694 : 37 M.L.J. 11 : (1919) M.W.N. 502 : 26 M.L.T. 127 : 21 Bom. L.R. 914 : 30 C.L.J. 209 : 23 C.W.N 1033 : 10 L.W. 362 : 46 I.A. 151 (P.C.) is opposed to this view of the scope of Section 21. In that case a suit had been instituted in the Subordinate Court of Vizagapatam on a mortgage of property which was partly situated in a Scheduled District over which the Subordinate Court had to jurisdiction and to which the Civil Procedure Code had not been applied, The contention for the appellant was that Section 21 only applied where the right place of suing was one subject to the Code. On this ground their Lordships held that the objection was not an objection to the place of suing which could be cured by Section 21 of the Code of Civil Procedure. They went further and held that the order for sale was had as made under Sections of the Code which did not apply to a Scheduled District. They had not to consider the application of Section 21 where all the mortgaged property was within the jurisdiction of Courts governed by the Code of Civil Procedure.

(3.) As regards the second question, Section 21 forbids any appellate or revisional Court to allow any objection as to the place of suing unless it was taken in the original Court and even then unless there was a consequent failure of justices. The effect of the section, in my opinion, is that objections which the Appellate or Revisional Court is thereby precluded from allowing must be considered cured for all purposes unless taken before the passing of the decree in the original Court.