Maharaja Talkies vs Maganlal

H.R. Krishnan, J.—This is an appeal by the judgment-debtor (against whom a consent decree has been passed) from the concurrent orders of the two lower Courts dismissing his objection to the execution.

The objection itself was on two grounds firstly that in the absence of rules u/s 40 Civil Procedure Code, no decree could be transferred to a Court in the Madhya Pradesh from a Court in another State. In view of the decisions of this Court in regard to this, this objection is not maintainable. The second objection is that the Court that passed the decree, that is, the Court of Civil Judge, Dhulia in the Bombay State, had no jurisdiction to entertain the suit it being exclusively cognisable by the Civil Judge at Indore.

There had been transactions between the parties at different places but the point to note is that at this stage the territorial competency of the Dhulia Court to entertain the suit cannot be questioned. The suit was filed there as long ago as 1953 and the judgment debtor appellant, as defendant raised various grounds in defence including the absence of territorial jurisdiction in the Dhulia Court. However, as the suit progressed, the defendant gave up this ground and prayed that a consent decree for Rs. 1300 plus costs might be passed against him. This was accordingly done on 20-1-1956. No payment being made, the decree was transferred for execution to a Court at Indore on 30-7-1956, and proceedings started here. It is at this stage that the judgment-debtor again raised the question of territorial jurisdiction and prayed that the executing Court should investigate the territorial competency of the decreeing Court to pass the decree at all. It was further urged that as it was a matter of inherent jurisdiction, the judgment-debtor was entitled to raise it at any stage and his earlier consent was not a bar. The same has been repeated in the first appellate Court which, however, dismissed it on the ground that the executing Court may not go behind the decree. In this Court, it is repeated and the judgment-debtor wants the controversy to be reopened certainly to his advantage as he could take several years more in getting it investigated. Actually, the provisions of Section 21, Civil Procedure Code, as interpreted by the Supreme Court are definitely against the stand taken by the judgment-debtor, especially, in this case where the decree being a consent decree, there has been altogether no miscarriage of justice.

In principle, it can be said that subject to statutory provisions the absence of basic juridiction of the Court to pass a decree can be raised at any stage, even if it be the stage of execution. In fact, this principle had been expressly stated in the Supreme Court ruling reported in Kiran Singh and Others Vs. Chaman Paswan and Others, :

It is a fundamental principle that a decree phased by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execusion...... ... ... A defect of jurisdiction, whether it is pecuniary or territorial or whether it is in respect of the subject-matter of the action, strikes at very authority of the Court to pass any decree and cannot be cured even by consent of parties.

This principle is subject to the operation of statute say. Section 21, Civil Procedure Code, which is applicable here, and in appropriate cases the similar provisions of Section 99, C. P. Code, and of Section 11 of the Suits Valuation Act. A want of jurisdiction in abstract principle, strikes at the root of the autority of the Court:-

No objection as to the place of suing shall be allowed by the appellate or the 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 should have been raised at the earliest stage in the original litigation and the want of torritorial jurisdiction should have resulted in miscarriage of justice.

The decree holder has cited the ruling reported in Govinddas Vs. Parmashwaridas (1957 JLJ 426). Though it has do application to the present case, it indicates a type of miscarriage of justice as would justify entertaining the objection to jurisdiction whether u/s 21 or 99, CPC or Section 11 of Suits Valuation Act. If a case that should have been tried by the ordinary Civil Courts is wrongly pushed on to the Small Cause Court, then the miscarriage of justice is obious, because in the latter Court, the procedure is more or less summary and there is no light of appeal. There may be other forms of miscarriage also which in an extreme case even consent may not cure. But in the instant case, the objection to territorial jurisdiction was raised but was given up and the decree itself was passed on consent. Certainly, a consent decree (unless force or fraud are pleaded) cannot be said to have occasioned miscarriage of justice. As stated by the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, :-

No objection to the place of suing shall be allowed unless there was a consequent failure of justice. The policy underlying Sections 21 and 99, CPC and 11 Suits Valuation Act is the same, namely, that when a case has been tried by the Court on merits and judgment rendered, it should not be liable to be reversed purely on technical grounds unless it has resulted in failure of justice. The policy of the Legislatuee has been to treat the objection to jutisdiction...... as technical and not open to consideration by an appellate Court unless there has been a prejudice on merits.

Shri Joahi, appearing for the judgment-debtor-appellant, urges that this principle should not be applied to the instant case because there has been a consent decree arid there has been no trial on merits. I do not agree. The words "trial on merits" have been used in the judgment to denote the disposal of the case and the rendering of justice, and it cannot at all be urged that the passing of a consent decree without having to go through the evidence and hearing of the arguments of parties is not trial and rendering of justice. Thus, in the present case, though the objection to jurisdiction was raised in the trial Court, it was given up and the parties including the defendant invited the Court to pass a consent decree. There has been no miscarriage of justice and the attempt to reopen the controversy is only a device on the part of the judgment-debtor to drag on the proceedings for some time longer.

The appeal is accordingly dismissed with costs and pleaders fee according to rules payable by the appellant to the decree-holder-respondent.