RAMANI ALIAS VENKATRAMANI Vs. MNARAYANASWAMI IYER

JUDGEMENT

(1.) In this case the suit was on a usufructuary mortgage-bond executed by the 1 and 2nd defendants to the plaintiff, the 1 defendant being the father of defendants 2, 3 and 4. The last two are the appellants before us. The 3 and 4th defendants, who are undivided members of a joint Hindu family which owns apparently large properties, have brought the suit to set aside the suit mortgage alleging inter alia that the document was only intended to operate if, on taking the accounts between the defendants and the plaintiff, any amount was found due from the latter to the former. The matter before us arises directly out of the petition for the appointment of a receiver in the Mayavaram Sub-Court in which the suit had been instituted. The suit was numbered 98 of 1912. Argument was heard, on the 19 September, 1923, the petition was adjourned for orders to the 21 September. For various reasons, the order was not pronounced till the 2nd October, 1923, when the plaintiff was appointed receiver. The difficulty arises from the fact that on the 1 October, 1923, a notification of Government took effect by which the local limits of the jurisdiction of the Mayavaram Sub-Court were changed and the Nannilam Munsif in which the lands in question are situate was transferred to the Tiruvalur Sub-Court. The first question raised before us in appeal from the order appointing the plaintiff receiver is that on the 2 October, the learned Subordinate Judge of Mayavaram had no jurisdiction to pronounce the order which is therefore void. The notification unfortunately does not save "pending suits, " and we had a long argument chiefly based on Subbiah Naicker v. Ramanathan Chettiar (1914) ILR 37 M 462 : 26 MLJ 189 and Seeni Nadan v. Muthuswami Pillai (1919) ILR 43 M 821 : 37 MLJ 284, on a question whether the Court to which the jurisdiction has been transferred is the only Court which can execute a decree passed by the Court from which the jurisdiction has been transferred. In my opinion, it is quite unnecessary to examine the cases on this subject for the learned Vakil for the petitioner at a late stage of his argument propounded other authorities to show that the learned Subordinate Judge had no jurisdiction. It may be premised that authority on this question is scanty. We have however a Full Bench decision of this Court. The Zemindar of Ettiyapuram v. Chidambaram Chetty (1920) ILR 43 M 675 : 39 M 17 J 203, which lays down that Section 21, C.P. Code applies to objections with regard to want of territorial jurisdiction. Further Wallis, C.J. there said." 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 justice. The effect of the section, in my opinion, is that objection 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."

(2.) Section 21 is inapplicable in terms to the present case because issues have been settled in the mortgage suit, and the section provides that any objection should be taken at or before such settlement and that no objection shall be allowed unless there has been consequent failure of justice. It is quite obvious that the objection could not in this case have been taken before or at the settlement of issues at which date the Mayavaram Sub-Court had full territorial jurisdiction over the subject-matter in dispute. It is objected that, the transfer having been made on the I October, when something in the nature of an application in arrest of judgment should have been put in by the appellant on the Ist or 2nd of October before the learned Subordinate Judge delivered his order and he not having done so, the appellant must be debarred from raising any objection now to the validity of the judgment. With this contention I agree. It has been held in the Full Bench case referred to that if no objection to jurisdiction is raised on the passing of a preliminary decree on a mortgage, it cannot be raised afterwards in execution. There the reasons are based on the wording of Section 47, C.P. Code, but it seems to be that the principle is that objection should be taken under Section 21 at the earliest possible opportunity and if it is not then taken, the objector is debarred from raising it afterwards. The objection further will be disallowed unless there has been a failure of justice.

(3.) The cases Jyoti Prakas V/s. Bagala (1922) 36 CLJ 124, Fajechand V/s. Nandram (1907) ILR 31 Bom 545, and The Queen V/s. The Inhabitants of Denton 18 QB 761, were all cases of jurisdiction over the subject-matter and therefore do not apply to the present case. As pointed out by Mookerjee, J. in the first of these cases the distinction between territorial jurisdiction and that as to the subject-matter is fundamental.