Abdul Rahiman Rowther vs Komalathammal

V. Balasubrahmanyan, J.—These two appeals have been filed by the judgment-debtor under a decree. They arise out of application filed by

him u/s 47 of the Code of Civil Procedure, to declare that the ex parte decrees obtained against him by the decree-holder were null and void for

want of territorial jurisdiction of the Court which passed the ex parte decrees. These applications of the judgment-debtor were dismissed. The

appeals against the dismissal of the applications also shared a similar fate. The learned Subordinate Judge, passed a common judgment in the two

appeals holding that the judgment-debtor was not entitled in the execution proceedings to raise a question of want of territorial jurisdiction in the

Court which passed the decree.

Mr. Krishnan, learned Counsel appearing for the judgment-debtor in these appeals, submits that the suits against his client were on mortgages of

immovable properties situate outside the territorial jurisdiction of the Court in which the suits were filed. He further submits that in both the suits

preliminary and final decrees for sale were passed by the District Munsif of Thiruvaiyaru as though he had territorial jurisdiction over the subject-

matter which he in fact did not possess. Learned Counsel pointed out that the judgment-debtor had filed written statements in both the suits

questioning the territorial jurisdiction of the learned Distrist Munsif. The contention of the learned Counsel is that notwithstanding that the suits were

tried and decided ex parte against the judgment-debtor, that would not prevent him from applying u/s 47 Code of Civil Procedure, for a

declaration that the decrees were void and unexecutable since they were passed by a Court not possessing the requisite jurisdiction.

Learned Counsel cited in support an old ruling of a Division Bench of this Court reported in Sri Rajah Satrucherla Sivakanda Raju Bahadur

Garu Vs. Sri Sri Sri Ramachandra Deo Maharajulam Garu, Rajah of Jeypore and Others, . That was a case of a decree in a mortgage suit for sale

in which the mortgagor-defendant sought to raise the question of want of territorial jurisdiction in the trial Court at the stage of execution of the

mortgage decree. The mortgagor''s particular contention was that the final decree was passed by a Court which did not possess the requisite

jurisdiction. It would appear that in that case, between the date of the preliminary decree and the date of the final decree in the mortgage suit, the

local area in which the property was situate was taken away from the jurisdiction of the Sub-Court in which the suit was filed. Objection having

been taken against execution on the score that the Court which passed the decree had no jurisdiction to do so, the question before the Court was

whether the judgment-debtor, by his conduct, had waived his right to object to the jurisdiction before the passing of the final decree. The learned

Judges, Wallace and Jackson, JJ., who decided the case, held that even where there was a waiver of a right to object to jurisdiction before the trial

Court, that would not bar a party from raising the question in execution preceedings. In that view, the learned Judges held that the sale of the

mortgaged property in execution of the decree was without jurisdiction and set aside the sale on the ground that the final decree itself was passed

by a Court without jurisdiction.

This decision was apparently cited by Mr. Krishnan, because the ground on which the two Courts below had rejected the judgment-debtor''s

objection in the present case was that he must be deemed to have waived his objection to jurisdiction when he remained ex parte both at the stage

of the preliminary decree and at the stage of the final decree.

While the decision cited by learned Counsel is apposite for the present purpose, I am of the view that it is no lenger good law in view of the

clear enunciation of the legal position by the Supreme Court in a case reported in Seth Hiralal Patni Vs. Sri Kali Nath, . The point which arose in

the case before the Supreme Court was whether the judgment debtor under a decree passed by the High Court of Bembay could apply for a

declaration that it was null and void on the score that, in the first place, the High Court had no jurisdiction to entertain and try and determine the

suit. It appeared from the facts in that case that t he suit was entertained by the High Court after it gave leave to sue on the score that a part only of

the cause of action accrued within the territorial limits of the jurisdiction of the Bombay High Court. Half-way through the suit, the matter was

referred to an arbitrator and subsequently, the award of the arbitrator was passed into a decree by the High Court. The decree of the High Court

was transferred for execution to the District Judge, Agra. Before the executing Court, the judgment-debtor raised the question of jurisdiction of the

Bombay High Court to pass the decree. It was contended before the Supreme Court that the Bombay High Court was not right in granting leave

to sue to the plaintiff inasmuch as no part of the cause of action accrued within the territorial limits of that High Court. The Supreme Court dealt

with this contention in the following passage:

Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution stage. The validity

of a decree can be challenged in execution proceedings only on the ground that the Court which passed the decree was lacking in inherent

jurisdiction in the sense that it could not have sesin of the case because the subject-matter was wholly foreign to its jurisdiction or that the

defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering

the Court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.

Proceeding further, the Supreme Court distinguished between an objection to jurisdiction in the sense that the objection goes to the root of the

jurisdiction, on the one hand and an objection to jurisdiction which is based purely on the territorial distribution of the business of administration of

justice as between different Courts. The Court observed :

It is well-settled that the objection as to local jurisdiction of a Court does not stand on the same footing as an objection to the competence of a

Court to try a case. Competence of a Court to try a case goes to the very root of the jurisdiction, and where it is lacking, it is a case of inherent

lack of jurisdiction. On the other hand, an objection as to local jurisdiction of a Court can be waived and this principle has been given a statutory

recognition by enactments like Section 21 of the Code of Civil Procedure.

On the facts of the particular case before them the Supreme Court held that when the defendant agreed to resolve the question in controversy in

that suit by a reference to arbitration, he must be deemed to have waived his objection as to territerial jurisdiction of the Bombay High Court. In

the circumstances, the Supreme Court held that the defendant was estopped from challenging the jurisdiction of the Bombay High Court to

entertain the suit at any subsequent stage. On this basis, the Supreme Court held that the judgment-debtor was not entitled to object to the

execution being levied on the basis of the judgment of the Bombay High Court.

In my view, this authoritative pronouncement of the Supreme Court making a distinction between an objection, as to inherent lack of jurisdiction,

on the one hand, and a mere objection, to the territorial jurisdiction of the Court on the other, is germane to the present case. The only objection of

the judgment-debtor, in the present case, is that the properties which were the subject-matter of the suit mortgages were outside the territorial

jurisdiction of the learned District Munsif of Thiruvaiyaru. This certainly is not an objection which goes to the competence of the Court. In any

case, even this objection must be deemed to have been waived by the judgment-debtor. Waiver may be either express or implied. An implied

waiver can be gathered by the conduct of the person who is stated to waive a particular right of his. In this case, by his masterly inaction both at

the stage of the preliminary decree and at the stage of the final decree in the suit, the judgment-debtor must be deemed to have waived whatever

objections to territorial jurisdiction he might have put forward in his written statement which he filed in answer to the suit claim.

In these circumstances, I must reject the contention of learned Counsel for the judgment-debtor. The appeals are dismissed and the order of

both the lower Courts are confirmed. However, there will be no order as to costs.