SHAMBHU SINGH Vs. RAM PAL SINGH

JUDGEMENT

(1.) This is an execution second appeal which raises the question whether, and if so in what circumstances, an executing Court is entitled to question the validity of a decree forwarded to it for execution. On 10 September 1912 a simple mortgage was executed by one Puran Singh (who subsequently made a transfer of the property in favour of the defendant-appellant Th. Shambhu Singh) in favour of the plaintiff Th. Ram Pal Singh in respect of certain property situated in pergana Ghiror of the Mainpuri district. On 2 July, 1932 the mortgagee instituted a suit No. 245 of 1932 for sale of the property in the Court of the Munsif of Mainpuri. Pergana Ghiror lies within the territorial jurisdiction of the Munsif of Shikohabad but the suit was for the recovery of a sum of Rs. 4770 and the suit therefore properly speaking lay in the Court of the Civil Judge of Mainpuri. It so happened that at this date the Munsif of Mainpuri, Mr. Suresh Chandra Chaturvedi, had extended jurisdiction up to as. 5000. The Munsif of Shikohabad Babu Brij Narain had also extended jurisdiction but only up to Rs. 3000. The suit was filed on 2nd July 1932 and the office reported that it was within time and within the jurisdiction of the Court and the suit was duly registered. No plea of want of jurisdiction of the Court was ever taken. The suit was once decreed ex parte but on its being subsequently restored a reference was made by the parties to arbitration and before the arbitrator a compromise was effected and on 20 September 1933 the Munsif of Mainpuri directed the preparation of a decree in accordance with the award, that is to say, he decided the suit in terms of the award of the arbitrators. We are informed that an application was made subsequently for amendment of this decree and while this was pending the suit was on 15 September 1934 transferred to the Court of the Civil Judge of Mainpuri whose jurisdiction included pergana Ghiror, and on 12 October 1935 the Civil Judge passed an order amending the decree and on 19 October the amended decree was prepared by that Court.

(2.) This was the position when on 4 August 1938 an application for execution was made to the Civil Judge of Mainpuri. This application was rejected on the 15th on the ground that the decree was really a decree of the Court of the Munsif of Mainpuri. On 19 August only a few days later, the present application for execution of the decree was made in the Court of the Munsif of Mainpuri with a statement that the property was situated in the territorial jurisdiction of the Munsif of Shikohabad and asking that a certificate should be sent to that Court for execution of the decree, under the provisions of Order 21, Rule 6.

(3.) This was done and an application was then made in the Court of the Munsif of Shikohabad on 24 August 1938. On 30 January 1939 objections were put in by the judgment-debtor on two grounds : (1) that the decree was null and void inasmuch as it had been passed by a Court which had not got territorial jurisdiction to entertain the suit and (2) that the decree in question was not executable by sale of the property, the latter objection being based on the terms of the decree. This point has not been gone into by the Courts below. The Munsif of Shikohabad took up the objection and held that it was within the competence of the transferee Court to question the jurisdiction of the Court which passed the decree. He proceeded to hold that the Court of the Munsif of Mainpuri which passed the decree had no territorial jurisdiction to do so. It may be noted, as indicating the dangers of such an inquiry as the one into which the Munsif entered, that in the course of his judgment he said that: The suit on the basis of the mortgage deed could then have been filed, not there but only in this Court (that is in the Court of the Munsif of Shikohabad). It was only when in the course of hearing of this appeal we made a careful examination of the circumstances, that it became apparent that the suit could not have been filed in the Court of the Munsif of Shikohabad because first it was not within the ordinary pecuniary jurisdiction of a Munsif and secondly the Munsif of Shikohabad had not extended jurisdiction up to as. 5000 enabling him to entertain it. The matter was taken in appeal before the District Judge of Mainpuri who held, on a consideration of rulings on the point, that on the principles which might be inferred from the Full Bench decision of this Court in Cantonment Board of Agra V/s. Kishan Lal the judgment- debtors were precluded from taking an objection about the want of territorial jurisdiction in the execution department. He accordingly allowed the appeal and directed that the lower Court should proceed with the execution according to law. We are informed that the lower Court has interpreted this order as barring inquiry into the second point, whether the decree was or was not executable by sale of the property, and think it necessary to remark that if that view has been taken by the executing Court, it is obviously an incorrect one. We have been referred to a number of cases relating to the question whether an executing Court is entitled to go into the question of the validity of the decree sent to it for execution and in what circumstances an executing Court can treat the decree sent to it as null and void. We may remark at the outset that it is clear that this was a case to which the provisions of Section 21, Civil P.C. were applicable. That section provides that: No objection as to the place of suing (i. e., forum) shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement and unless there has been a consequent failure of justice. It is no doubt, because that also was a case to which Section 21 of the Code would have been applicable that on behalf of the appellant the judgment-debtor appellant Thakur Shambhu Singh, reliance has been placed particularly on the case upon which the learned Munsif based his decision. This is the case in Murlidhar Srinivas V/s. Gorakh Ram Sadhu Ram ( 36) 23 A.I.R. 1936 Nag. 1 in which it was held by a Full Bench of the Nagpur High Court that an omission by a judgment-debtor to take an objection as to the jurisdiction of the Court to pass a decree in a mortgage suit during the trial or before the preliminary decree for sale is made absolute does not preclude him from raising an objection to delivery of possession of the property in execution of the decree passed against him on the ground that the Court which passed the decree and held the sale had no inherent jurisdiction to entertain the suit. That was a case in which the Bombay High Court passed a decree on the basis of an equitable mortgage relating to property situated in the Wardha district of the Central Provinces. It was held that the Bombay High Court had no jurisdiction to pass a decree on the basis of this mortgage when no part of the property over which the decree was intended to operate was situated within the jurisdiction of the Court. It was further held that: It is an established principle of law that in a case which the Court is competent to try, if the parties without objection join issue and go to trial, the defendant cannot subsequently dispute the jurisdiction of the Court upon the ground that there were irregularities in the initial procedure which if objected to at the time would have led to the dismissal of the suit. Section 21, Civil P.C. applies to such a case. But Section 21 has no applicability to a case in which a Court which has no jurisdiction over the subject-matter of the action passes a decree which is wholly void, and the maxim applies that consent cannot give jurisdiction. In the course of the judgment reference was made to another Nagpur case Laxman Madhoji V/s. Dhamori Co-operative Credit Society reported in ( 33) 20 A.I.R. 1933 Nag. 211 in which a Bench had held that the fact of the Court having no jurisdiction to pass a decree ought to appear on the face of the decree or must be capable of being gathered without the necessity of an enquiry into facts. The learned Munsif assumed that this decision was applicable in its entirety and that it was apparent on the face of the record that the Munsif of Mainpuri could have had no jurisdiction to entertain the suit upon the mortgage which suit was maintainable only in the Court of the Munsif of Shikohabad. As we now know this latter statement was mistaken and the very fact that this mistake could be made shows the danger of allowing an executing Court to entertain an objection of this particular kind, more particularly when the objection has not been taken in the Court in which the suit was tried out. Moreover, while one may feel that the view taken by the Nagpur High Court was proper in the circumstances of the case with which they had to deal and that such a view might well be taken in a case where, for example, a Court in Saharanpur had passed a decree upon a mortgage which related to properties situated in the district of Ballia, the question assumes quite a different aspect when the executing Court had to deal with a decree passed by a Court in the same district in a suit which apparently by mistake had been instituted in that other Court probably sitting in the very same building and related to property situated in the district in which the suit was instituted. In our judgment, upon its facts, the Nagpur case relied on by the trial Court was not applicable and we do not feel entirely happy about the principles laid down, bearing in mind that there are really very few cases in which it can be said on the face of the decree forwarded for execution that that decree is null and void for lack of jurisdiction of the Court which passed it. Such might appear to be the case in a case where a decree is passed against a minor and on the face of the decree the minor is not shown to have been represented by any next friend, and might also appear to be the case in cases of the kind to which the Nagpur appeal related, but in the majority of such cases a considerable degree of enquiry is necessary before it can be said that the decree is a nullity. The next case on which reliance has been placed for the appellant is, Gorachand Haldar V/s. Profulla Kumar Roy a decision of Bench of five Judges of the Calcutta High Court, in which it was held that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction i.e. within these narrow limits the executing Court is authorised to question the validity of a decree.