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Judgment
Odgers, J.—In this case the suit was on a usufructuary mortgage-bond executed by the 1st and 2nd defendants to the plaintiff, the 1st
defendant being the father of defendants 2, 3 and 4. The last two are the appellants before us. The 3rd and 4th defendants, who are undivided
members of a joint Hindu family which owns apparently large properties, have brought the suit to set aside the suit mortgage alleging inter alia that
the document was only intended to operate if, on taking the accounts between the defendants and the plaintiff, any amount was found due from the
latter to the former. The matter before us arises directly out of the petition for the appointment of a receiver in the Mayavaram Sub-Court in which
the suit had been instituted. The suit was numbered 98 of 1912. Argument was heard, on the 19th September, 1923, the petition was adjourned
for orders to the 21st September. For various reasons, the order was not pronounced till the 2nd October, 1923, when the plaintiff was appointed
receiver. The difficulty arises from the fact that on the 1st October, 1923, a notification of Government took effect by which the local limits of the
jurisdiction of the Mayavaram Sub-Court were changed and the Nannilam Munsif in which the lands in question are situate was transferred to the
Tiruvalur Sub-Court. The first question raised before us in appeal from the order appointing the plaintiff receiver is that on the 2nd October the
learned Subordinate Judge of Mayavaram had no jurisdiction to pronounce the order which is therefore void. The notification unfortunately does
not save ""pending suits, "" and we had a long argument chiefly based on Subbiah Naicker v. Ramanathan Chettiar ILR (1914) M 462 : 26 MLJ
189 and Seeni Nadan v. Muthuswami Pillai ILR (1919) M 821 : 37 MLJ 284, on a question whether the Court to which the jurisdiction has been
transferred is the only Court which can execute a decree passed by the Court from which the jurisdiction has been transferred. In my opinion, it is
quite unnecessary to examine the cases on this subject for the learned Vakil for the petitioner at a late stage of his argument propounded other
authorities to show that the learned Subordinate Judge had no jurisdiction. It may be premised that authority on this question is scanty. We have
however a Full Bench decision of this Court. The Zemindar of Ettiyapuram v. Chidambaram Chetty ILR (1920) M 675 : 39 M 17 J 203, which
lays down that Section 21, C.P. Code applies to objections with regard to want of territorial jurisdiction. Further Wallis, C.J. there said."" Section
21 forbids any appellate or revisional Court to allow any objection as to the place of suing unless it was taken in the Original Court and even then
unless there was a consequent failure of justice. The effect of the section, in my opinion, is that objection which the Appellate or Revisional Court is
thereby precluded from allowing must be considered cured for all purposes unless taken before the passing of the decree in the Original Court.
Section 21 is inapplicable in terms to the present case because issues have been settled in the mortgage suit, and the section provides that any
objection should be taken at or before such settlement and that no objection shall be allowed unless there has been consequent failure of justice. It
is quite obvious that the objection could not in this case have been taken before or at the settlement of issues at which date the Mayavaram Sub-
Court had full territorial jurisdiction over the subject-matter in dispute. It is objected that, the transfer having been made on the Ist October when
something in the nature of an application in arrest of judgment should have been put in by the appellant on the Ist or 2nd of October before the
learned Subordinate Judge delivered his order and he not having done so, the appellant must be debarred from raising any objection now to the
validity of the judgment. With this contention I agree. It has been held in the Full Bench case referred to that if no objection to jurisdiction is raised
on the passing of a preliminary decree on a mortgage, it cannot be raised afterwards in execution. There the reasons are based on the wording of
Section 47, C.P. Code, but it seems to be that the principle is that objection should be taken u/s 21 at the earliest possible opportunity and if it is
not then taken, the objector is debarred from raising it afterwards. The objection further will be disallowed unless there has been a failure of justice.
The cases'' Jyoti Prakas v. Bagala (1922) CriLJ 124, Fajechand v. Nandram ILR (1907) Bom 545, and The Queen v. The Inhabitants of
Denton 18 QB 761, were all cases of jurisdiction over the subject-matter and therefore do not apply to the present case. As pointed out by
Mookerjee, J. in the first of these cases the distinction between territorial jurisdiction and that as to the subject-matter is fundamental.
Moreover, it was held by Phillips and Venkatasubba Rao, JJ. in Appeals Nos. 312 and 329 of 1920 that the principle underlying Section 21,
C.P. Code, is that objection to territorial jurisdiction may be waived. So here it may be said that the appellant not having taken objection to the
passing of the Sub-Judge''s order must be held to have waived his objection to his doing so on the ground of want of jurisdiction.
As to this question the Full Bench thought it unnecessary to deal with it or whether the words "" place of suing "" were not wide enough to include
objections to the place of prosecution as well as of instituting suits. Wallis, C.J., however, with whose judgment the other members of the Court
agreed, appears to me to have been inclined to the opinion that they were. This really concludes the point under discussion.
I am, therefore, of opinion that this objection ought to have been taken before the judgment was pronounced and that, no objection having been
taken, the appellant must be taken to have waived all objections to the pronouncement by the Subordinate Judge of his order. In any case, the
question is entirely technical as regards the circumstances of the present appeal and I am, for the reasons given, of opinion that the objection to the
appeal u/s 21, C.P. Code, must be upheld.
Moreover, I am of opinion that no failure of justice has taken place. It is, therefore, necessary to shortly consider the merits which have been
argued before us at great. length. The appellant argued that there was no case made out for a receiver. I am not prepared, on a consideration of
the whole of the documents filed, to come to a conclusion against that of the Subordinate Judge in this matter. The plaintiff and defendants, or at
least the Ist defendant''s father, have been close friends for a number of years and the friendship was apparently only broken when the question of
settlement of accounts occurred between them. The defendants are rich men. The plaintiff was in management of the properties, it is said, by the
defendants'' consent. The plaintiff is also said to have been trusted by the Ist defendant as a man of business to look after the properties as his
agent. For a number of years the plaintiff appears to have occupied a position of trust with regard to the Ist defendant, but it is said by the latter
that at the end of 1921, the plaintiff was removed from his position. If that is so, it is rather significant that the plaintiff in January, 1922'', appears to
have paid the cist on the plaint land. The allegation for the plaintiff is, of course, that he was never- a manager but that he was in possession in his
own right. The plaintiff is not in possession of the mortgage-bond on which he sues, but that is apparently in the possession of the defendants''
agent who was also the kariastan. The Subordinate Judge has come to the conclusion that the plaintiff ought to remain in possession until the
decision of the suit. I am not prepared to say that he has exercised his discretion wrongly. I refuse to interfere with his appointment of the plaintiff
as receiver and dismiss the C.M.A. with costs.
Wallace, J.
There is no need to re-state the facts of this case. The first point for decision is whether any want of jurisdiction exists. This depends on the
answer to the question whether, when a particular local jurisdiction of one Court is transferred to another by notification under Sections 10 or 11
of the Madras Civil Courts Act, such transfer carries with it automatically all pending suits and proceedings of any and every sort arising out of that
local jurisdiction, so that the Court in which they were originally filed loses jurisdiction and the Court to which the local jurisdiction is transferred
assumes it. This seems to be a point not free from difficulty, and I can find no direct authority on it. If a Court having a particular local jurisdiction is
abolished and another Court takes over that jurisdiction, it seems to me that the latter takes over all pending proceedings in the former. The
principle is that only the Court, in whose local jurisdiction the suit arises, can deal with all proceedings of a civil nature in that jurisdiction, whether
previously pending in other Courts or not, so if any fresh application had to be put in in a suit, arising in a local jurisdiction since transferred to
another Court, the applicant would have to be guided as to the forum for his application by considering not whether the suit had been instituted in a
particular Court but which Court has local jurisdiction within the local limits from which his application arises. It is difficult to see why a Court
having local jurisdiction should not have jurisdiction to receive such an application, and, if it has such jurisdiction, the other Court cannot have that
jurisdiction also.
As regards the cases cited before us, that of Subbiah Naicker v. Ramanathan Chettiar ILR (1914) M 462 : 26 MLJ 189 is at least authority for
the proposition that when, after an order for sale in execution was passed by one Court, the local limits of the jurisdiction of that Court were so
altered that the property fell within the local limits of another Court''s jurisdiction, the former Court loses its control over the execution proceedings
which pass automatically to the latter Court. The case of Subbayya v. Rachayya ILR (1914) M 477 also favours the view that the Original Court
in which a suit on contract was first instituted ceased to have jurisdiction when the place where the contract was made was taken away from its
limits. I do not find that the Full Bench case in Seeni Nadan alias Virakumaru Nadan Vs. Muthusami Pillai and Others, in any way overrules this
general proposition. It proceeded on the general bearing of Sections 37 and 38 of the CPC which allow a decree-holder to apply for execution to
the Court which passed the decree as well as to the Court having local jurisdiction, if that is a different Court. There is in that report no expression
of any doubt as to the proposition that, generally and apart from the provisions of Sections 37 and 38 of the Civil Procedure Code, when the local
jurisdiction has been transferred from one Court to another, pending civil proceedings in the former Court are automatically transferred to the
latter; and Sadasiva Aiyar, J. held to his former view in Subbiah Naicker Vs. Ramanathan Chettiar, , see his remarks in Seeni Nadan alias
Virakumaru Nadan Vs. Muthusami Pillai and Others, ; ""The fact that at a particular time the Court was competent to pass a decree for sale cannot
mean that its jurisdiction to proceed further could be retained for ever. "" The cases in Ranganatha Rao v. Hanumantha Rao ILR (1922) M 1 and
Mouna Guruswami Naicker v. Sheik Mahommadhu Rowther ILR (1923) M 83 : 1923 43 MLJ 713 also support the general proposition
advanced above; and also all the cases in which the power of a Court, which passed the decree, to execute it after its local jurisdiction has been
transferred have been considered, for example, K.C. Manavikraman alias Anujan Raja Averghal Vs. N.C. Ananthanarayana Ayyan and Others, ,
all of which cases assume that with the transfer of local jurisdiction the power to execute follows automatically. See also Fenkataraov.Sastha Iyer
(II). It is difficult therefore to say that the view that a Court must have territorial jurisdiction all through the trial of a suit before it is an unsound one,
and I am inclined, as at present advised, to the view that the transfer of local jurisdiction does automatically effect the transfer of all pending suits
and proceedings arising originally from that local jurisdiction. In the present case, then, the Sub-Court of Mayavaram lost jurisdiction over this suit
and all proceedings therein on the Ist of October and had therefore no jurisdiction to deliver the order under revision.
The next question is whether the petitioner is estopped by force of Section 21 of the CPC from raising in this Court the plea of want of
jurisdiction in the Mayavaram Sub-Court. He is met by the other side by the argument that, as he did not, on the 2nd October, on which date the
Sub-Court passed the order in this case, object to the Sub-Court so pronouncing its order, he is precluded by Section 21 of the CPC from now
raising that contention. Again there is some lack of authority to guide us on this point. The nearest case on the point which I am able to trace is the
Full Bench in ''Zemindar of Ettiyapuram v. Chidambaram Chetty (1920) ILR 4.3 M 675 : 39 MLJ 203, where it was held, first, that Section 21
governs all cases of lack of territorial jurisdiction, secondly, that it applies to execution proceedings, that is, to proceedings after the decree in a
suit, and thirdly, that a party cannot plead in execution that the decree under execution was passed without jurisdiction. The third point is not
applicable to the present case. The answer to the second does not appear to be of much help in deciding as to the validity of applying Section 21
to proceedings in suits after issues have been framed and before decree is passed. The answer of the Full Bench was given on the narrow ground
that the want of jurisdiction to pass a decree is ordinarily not open as a ground of attack on appeal or revision, and that Section 21 forbids such
attack unless it was made in the original Court and unless the want of jurisdiction led to a failure of justice. The reasoning set out at page 686
seems to suggest that Section 21 forbids any objection as to want of territorial jurisdiction being raised on appeal or revision unless it was raised in
the original Court. That again being based on an interpretation of the phrase '' objection as to the place of suing.'' in the section, which was held to
mean objection to the institution of the suit on the ground that the Court in which it was instituted had not jurisdiction over the property which was
the subject-matter of the suit. I am not sure that the Court further held that the phrase ''institution of the suit'' covered all proceedings in the suit
after the institution. That the Court felt this difficulty is plain from the passage in page 687: "" It is unnecessary to consider whether those particular
words may not be read as applying only to cases where it is possible to take the objection at or before the settlement of issues, and whether the
words ''place of suit'' are not wide enough to include objections to the place of prosecuting as well as of instituting suits, "" and the case was finally
decided on the assumption that, even if Section 21 did not apply, the jurisdiction of the Court which passed the decree could not be questioned in
execution, for which proposition there was direct authority. So, I find no clear guidance in this ruling as to whether Section 21 applies when during
the pendency of a suit and after the framing of issues the local jurisdiction from which the suit arose has been transferred to another Court, and
whether all proceedings in that suit after the transfer, if taken in the original Court, would be void.
On this point I find myself most in agreement with the referring judgment of Seshagiri Aiyar, J. who points out that to hold that the phrase ''
place of suing '' is synonymous with territorial jurisdiction is to hold that jurisdiction may be conferred by consent or at least by silence and by
refraining from objecting to it.
I consider, however, that I must follow the Full Bench ruling in so far as it lays down that Section 21 governs all cases of want of territorial
jurisdiction. In that case this plea of want of jurisdiction shall, under the section not be entertained unless inter alia there has been a consequent
failure of justice. On the merits, I agree with my learned brother for the reasons given by him that the petitioner has not made-out any case of
failure of justice consequent on this want of jurisdiction and I therefore agree that the C.M.A. must fail and be dismissed with costs.