KASI VISWANATHAN CHETTY Vs. MURUGAPPA CHETTY

JUDGEMENT

(1.) The order before us is one passed under Order XXI, Rule 90 of the Code of Civil Procedure, refusing to set aside a sale in execution. As regards the objections to it argued on the evidence relating to inadequacy of price and substantial loss we accept the Lower Court s observations and concur in its conclusions. The remaining objection that the sale was held without jurisdiction calls for more lengthy discussion. It arises as between appellant, the Judgment debtor, and 1st respondent, the decree-holder, and is that the lower court, the Subordinate Court of Ramnad, had no jurisdiction, to sell property, which, it is admitted, is situated in the territorial jurisdiction of the Subordinate Court of Sivaganga. The decree under execution was passed by the Chief Court of Lower Burma and was transmitted by it for execution to the District Court of Ramnad, that court transferring it for execution to the lower court.

(2.) The objection has been met first by the argument that the lower court is of unlimited pecuniary jurisdiction and therefore of competent jurisdiction within the meaning of Order XXI, Rule 8 of the Code of Civil Procedure. The transfer to it by the District Court of the decree for execution was accordingly such as the rule contemplates and conferred on it the jurisdiction necessary to support its proceedings, notwithstanding that territorial jurisdiction over the property to be sold was wanting. But this has been justified only by the assumption that the expression "court of competent jurisdiction" in the Rule should be interpreted as it must be, when it occurs in Section 24, with reference to territorial jurisdiction. The assumption is unsustainable, because it is negatived by the object of the last mentioned provision. For the competence of a court to try a suit does not depend on its possession of any power connected with territorial competence, since it has independently of it machinery far issuing process, obtaining the presence of parties and securing evidence throughout India. Otherwise as regards Order XXI, Rule 8 of the Code of Civil Procedure and execution, since, apart from the special and exceptional procedure by precept, a court cannot act through its officers except within its territorial jurisdiction.

(3.) This follows from Section 39(1)(b) and Section 42 of the Code of Civil Procedure. Section 38 is no doubt general in its terms. But the reference in it to "the court to which the decree is sent" must be read with reference to a sending authorised by law that is subject to Section 39. And the, reference to competence in Order XXI, Rule 8 must be interpreted in the same way. It may be added that this reference was first made in Order XXI, Rule 8 of the present Code, the wording of Section 226 of the old Code of Civil Procedure corresponding with it having been modified, and it is therefore useless to refer to the only decisions on the point, those reached under the former law. The conclusion must in the circumstances be against the contention of the decree holder, the 1st respondent.