CHOKKALINGA PILLAY Vs. VELAYUDHA MUDALIAR

JUDGEMENT

(1.) This suit (O.S. No. 27 of 1917) has been brought to set aside the final decree in O.S. No. 15 of 1903 in the Kumbakonam Sub-Court and for recovery of the properties comprised therein. The first question we have to deal with in this appeal is whether that decree can be set aside as being absolutely void for want of jurisdiction. It is a decree in a mortgage suit instituted in 1903 when the Kumbakonam Court had jurisdiction over the place wherein the mortgaged property is situated. In 1907 the jurisdiction over this particular place was transferred from the Kumbakonam Court to the Mayavaram Court; and, at the time of passing the final decree, the Kumbakonam Court had no jurisdiction over the place where the mortgage properties lie. The Subordinate Judge, relying on Subbiah Naicker V/s. Ramanathan Chettiar (1914) ILR 37 M 463 : 26 MLJ 189, has held that this decree was absolutely void, but has, for other reasons, dismissed the plaintiff's suit.

(2.) In urging the appeal the respondents support the decree on the ground that this finding of the lower Court is not correct; and it is argued that when the case has been properly instituted in a Court and is pending the mere transfer of territorial jurisdiction affecting that case does not transfer the proceedings which were actually pending in the original Court. It is also argued that inasmuch as the plaintiff not only consented to the jurisdiction of the Kumbakonam Sub-Court but actually invoked its jurisdiction in this particular case, he is barred by the principle of Section 21, Civil Procedure Code, from raising the objection now. No doubt, in Subbiah Naicker V/s. Ramanathan Chettiar (1914) ILR 37 M 462 : 26 MLJ 189, it was observed that, " unless the authority which changes the venue reserved the right to the Court which has lost the jurisdiction to continue pending proceedings affecting the property so transferred to another jurisdiction, such proceedings also, ipso facto, are transferred by the change of venue to the new Court. " This observation in this particular case was made obiter; and when this case was considered by another Full Bench in Seeni Nadan V/s. Muthuswami Pillai (1919) ILR 42 M 821: 37 MLJ 284, some of the obiter dicta in Subbiah Naicker V/s. Ramanathan Chettiar (1914) ILR 37 M 462 : 26 MLJ 189. were overruled, although this one was not particularly specified. So long ago as 1900 in Sadasiva Pillai V/s. Kalappa Mudaliar (1900) ILR 24 M 39 it was held that the right of appeal which existed when the suit was filed in a District Court was not taken away by a subsequent notification which removed the jurisdiction of the District Court to try such a suit and in the course of the judgment, we find the following:--" The District Judge held quite rightly that notwithstanding the notification he had jurisdiction to hear suit on the ground that it had been instituted before the notification came into force. " Similarly in Fedavalli Narasiah V/s. Mangamma (1903) ILR 37 M 538, it was held that where the jurisdiction of Civil Courts was taken away by Section 33 of Act II of 1894, this did not affect the suit which had been filed in a Civil Court before that section became applicable to the subject-matter of the suit. Again in Subbaraya Mudaliar V/s. Rakkhi (1908) ILR 32 M. 140 it was held that the Madras Estates Land Act did not take away the jurisdiction of Civil Courts to hear and determine suits which had been taken cognizance of by them before the Act came into operation. It is difficult to discover any difference in principle between those cases and the present case where the territorial jurisdiction has been altered; and in fact, it would appear that when the entire jurisdiction of the Civil Court has been taken away, such removal would apply with more force to pending suits than in a case where the jurisdiction of the Court over the particular place in which the property is situated has alone been removed. A large number of cases have been cited which deal with the jurisdiction of a Court to execute a decree properly passed by it, when territorial jurisdiction has been taken away after the passing of the decree. I do not think that much importance can be attached to these cases because there are certain special sections of the Civil P. C., i.e., 37, 38, 39 and 150 which specifically deal with this point and there is no special provision in the Act which deals with pending suits. The jurisdiction of a Court consists in its power to entertain suits, and when once a suit has been properly entertained, it is difficult to understand how that jurisdiction is removed unless it is specifically so done by the order of a competent authority. Once the suit has been entertained, the remaining proceedings taken therein are not taken by reason of any particular territorial jurisdiction, but in the exercise of the powers vested in the Court to try suits generally and consequently the only time at which the territorial jurisdiction comes into operation is at the time of filing the suit. Once the Court has seizin of the case, it has jurisdiction to try it to its conclusion, unless there is any reason for holding that that jurisdiction has been removed. If this be the right principle and I think it is, it would account for the fact that there is no provision in the Civil Procedure Code for the trial of suits, pending in a Court which had territorial jurisdiction at the time of their institution, after such jurisdiction has been removed before the trial is concluded. In this view, it appears to me that the final decree passed in this suit was not passed without jurisdiction.

(3.) Support to the view that territorial jurisdiction is not more important than and in fact probably not so important as the other form of jurisdiction of a Court is given by the provisions of Section 21, Civil Procedure Code. Under that section unless objection is taken to the place of suing, which has been held to mean territorial jurisdiction, at the earliest possible opportunity, no objection can be taken in appeal or in revision. That section is not strictly applicable to the present case for this is not an appeal from the original decree but it has been extended in Zamindar of Ettiyapuram V/s. Chidambaram Chetty (1920) ILR 43 M 675 : MLJ 203 (FB). to execution proceedings and in that case, it was held that the effect of the section is that objections which the appellate or revisional Court is thereby precluded from entertaining must be considered cured for all purposes unless taken before the passing of the decree in the original Court. In principle there is no distinction between applying the provisions of Section 21 to execution proceedings and applying them to a suit specially brought for the purpose of setting aside a decree. The principle underlying the section is that waiver of territorial jurisdiction is recognised by law, whereas it has been consistently held that other forms of jurisdiction, such as jurisdiction of the subject-matter or pecuniary jurisdiction cannot be waived by consent of parties. If territorial jurisdiction can be thus waived, it has admittedly been waived in the present case. I would therefore hold that for this reason also the final decree was passed with jurisdiction and it is therefore binding upon the plaintiff who was a party thereto.