Kasi Viswanathan Chetty vs Murugappa Chetty and Another

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.

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 CPC and execution,

since, apart from the special and exceptional procedure by precept, a court cannot act through its officers except within its territorial jurisdiction.

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 CPC 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.

He has however argued in the alternative that the transfer of the decree to the Lower Court by the District Court was or must be presumed to

have been to a court competent, when the transfer was made, and that its competence has not been affected by any subsequent transfer to the

Sivaganga Court of jurisdiction over the village, where the property sold is situated. The transfer of jurisdiction to the Sivaganga Court took place,

we have ascertained from the District Judge, on the 15th April 1918. Regarding the date of the transfer of the decree by the District Court there is

nothing on the record before us. But, if it be presumed that it was before the transfer of jurisdiction and that the transfer of the decree was

valid,that cannot avail the 1st respondent. For the material point is that the sale under consideration was held after 15th April 1913 in 1915,...when

the lower court had no territorial jurisdiction and it is the law, as laid down in Subbiah Naicker v. Ramanatha Chettiar ILR (1914) M. 462 a

decision by which we are bound, that pending proceedings are transferred by operation of law on the occurrence of any change in territorial

jurisdiction over the property, with which they are concerned. Therefore, if the lower court was at any time competent to execute the decree in

virtue of any transfer to it prior to 15th April 1913, it forfeited its competence to keep the suit property under attachment or to sell it from that

date. The decision cited dealt, like the present proceedings, with execution. The only ground of distinction from it suggested, that the notification

transferring jurisdiction in question in it may have withdrawn, whilst that in question here did not withdraw, jurisdiction over the transferred area,

would require clear support from the terms of the notifications, since such concurrent jurisdiction in the case of courts of equal grade is rare, if not

unprecedented. But such support, we have satisfied ourselves, is in no degree forthcoming. This argument also must therefore be rejected.

As the sale was held without jurisdiction, it must be set aside, the appeal being allowed and the lower court''s order being reversed with costs

throughout.