Patna High Court
Ishwar Mahto And Anr. vs Naipal Singh And Ors. on 30 April, 1956
Equivalent citations: AIR1956PAT280, AIR 1956 PATNA 280
JUDGMENT Ahmad, J.
1. These two miscellaneous appeals are by the two judgment-debtors of Execution Case No. 15 of 1955 and are directed against the common order, dated 10-10-1955 passed therein dismissing their objections to the effect that the decree under execution was void and without jurisdiction.
2. The suit (Title Suit No. 17/11 of 1946/ 1944) giving rise to the decree was instituted by the decree-holders on 26-2-1944, in the Court of the Subordinate Judge at Arrah and was one for possession and mesne profits in respect of some lands in village Sunder situate in the sub-division of Sasaram in Shahabad district. The pre liminary decree in the suit for mesne profits was passed on 31-8-1946. For the moment the suit rested there.
In the meantime on 6-1-1948, the State Government in the exercise of their powers given to them under Sections 13(1) and 14(1), Bengal, Agra and Assam Civil Courts Act, 1887, issued a Notification (No. 39-IIC-5/47J) whereby they declared that a Subordinate Judge's Court shall be established at Sasaram in the district of Shahabad with effect from 19-1-1948. It read as follows :
"No. 39-IIIC-5/47J, In exercise of the powers conferred by Sub-section (1) of Section 13 and Sub-section (1) of Section 14, Bengal, Agra and Assam Civil Courts Act, 1887 (12 of 1887), the Governor of Bihar is pleased (a) to declare that Subordinate Judge's. Court shall be established at Sasaram in the district of Shahabad; (b) to fix the whole of the sub-division of Sasaram and Bhabhua in the district of Shahabad as the local limits of the jurisdiction of the said Court: and (c) to direct that the said Court shall be held at Sasaram.
. This notification shall come into force with effect from 19-1-1948. "Subsequently it was followed by another notification (No. 588-J) dated 16-1-1948. That read as follows : "No. 588-J. In exercise of the powers conferred by Sub-section (1) of Section 13, Bengal, Agra and Assam Civil Courts Act, 1887 (12 of 1887) the Governor of Bihar is pleased to declare that the local limits of the execu- tive sub-divisions of Sasaram and Bhabhua, shall cease to be included in the local limits of the jurisdiction of the Court of the Subordinate Judge of Arrah, with effect from 19-1-1948, or with effect from the- date on which the Subordinate Judge's Court at Sasaram actually starts functioning.".
It is not controverted that as a result of these notifications a Subordinate Judge's Court at Sasaram did start functioning since 19-1-1948, with its territorial jurisdiction over the areas covered by the executive sub-divisions of Sasaram, and Bhabhua and from that date those areas ceased to be included in the territorial jurisdiction of the Civil Courts at Arrah. Therefore, it; is said that since after 19-1-1948, all Civil suits relating to lands situate in the sub-division or Sasaram should have been filed in the Court at Sasaram and not in the Court at Arrah.
But it is admitted that despite the changes referred to above in the territorial jurisdiction of the Civil Courts at Arrah the next step for the ascertainment of mesne profits and the passing of the final decree in Title Suit No. 17/11 of 1946/1944 was even thereafter taken not in the Court at Sasaram but in the Court at Arrant which had passed the preliminary decree and that it was the Court at Arrah that on 15-1-1955, passed the final decree under execution.
While this execution case was pending in the Court at Arrah and 3-10-1955, had already been fixed for the sale of the property prayed for, the two judgment-debtors Ishwar Mahto and Laldeo Mahto filed objections to the validity of execution proceedings which were registered as Misc. Cases Nos. 25 and 27 of 1955, respectively.
The important objection, amongst others, which was taken in common by them in those miscellaneous cases and which alone has been passed in these appeals was that the Subordinate-Judge's Court at Arrah had ceased to have any jurisdiction since 19-1-1948, in suits relating to properties situate in the sub-divisions of Sasaram and Bhabhua.
Therefore the decree passed against them by the Civil Courts at Arrah on 15-1-1955, which related to lands situate in the sub-division of Sasaram, was void and without jurisdiction and consequently the execution proceeding could not validly proceed on the basis of that decree. The Court of execution on hearing the parties dismissed all their objections including the one relating to the invalidity of the decree on the ground of want of territorial jurisdiction.
3. Mr. De appearing for the judgment-debtors in this Court, as already stated above, has challenged the order of the executing Court only to the extent to which it relates to the question arising from the change in the territorial jurisdiction of the Court at Arrah and in support of this contention reliance has been mainly placed by him on a decision of this Court in -- 'Babui Dineshwari Kuer v. Ram Narain Singh', 1936 Pat 546 (AIR V 23) (A).
In my opinion, that case Is not of much avail to the learned Advocate. The facts of that case are quite distinguishable and it was decided on its own facts. Therein the point in controversy related to the jurisdiction not of the old Court which originally had territorial jurisdiction over the property in dispute in the suit but to the jurisdiction of the new Court subsequently created having jurisdiction over that property. And the specific point raised was as to whether the final decree passed by the new Court on the issue of the notification, under Section 13(1), Bengal, Agra and Assam Civil Courts Act. 1887 in the suit, which was initially instituted before the old Court and was at the time of the notification pending there, was a valid decree.
In deciding this point, the learned Judges who heard that case laid reliance on Section 17, Bengal, Agra and Assam Civil Courts Act, 1887, and held that the decree passed by the newly established Court was a valid decree and that the lower Court was wrong to hold that further proceedings in the case should have continued in the old Court where the suit had been initially instituted before the transfer of territorial jurisdiction to the new Court.
It is true that in giving that decision their Lordships made certain observations which may be said to be susceptible to an interpretation that on the transfer of territorial jurisdiction to a new Court the old Court loses all its jurisdiction over cases relating to properties lying in the territory transferred to the new Court including even those which are then pending there. But that aspect; of the matter, if I may say so with all respect, on the facts of that case did not arise for decision. Therefore, the observations made in that case to that extent cannot have any binding effect in law and are to be taken as obiter. The specific observations to that effect in the judgment is as follows :
"Once a new Court is established and the territorial limit of an existing Court is curtailed by notification of Government, the latter Court ceases to have jurisdiction over the area which is taken away from its jurisdiction and placed under the jurisdiction of the newly established Court. Similarly if an area is taken out of the jurisdiction of one existing Court and placed under that of another the former Court ceases to have jurisdiction over the cases of the area so taken out of its jurisdiction and the pending cases automatically placed under the jurisdiction of the latter Court.
It is not enough that a Court should have Jurisdiction over a suit at the time of its institution but that its jurisdiction must continue till the case is finally disposed of, subject of course to any order of transfer which may be passed by a competent authority.
In order to enable a Court to pass a decree in a suit it must possess the basic jurisdiction which comes under four heads, (1) territorial, (2), pecuniary, (3) personal and (4) subject matter. It is essential (bearing those cases in which there are doubts about the territorial limits) that the Court must possess all these jurisdictions at the time of the passing of the decree otherwise, it is void. Therefore, if a Court loses the territorial jurisdiction it cannot proceed to pass the decree, though it had such jurisdiction when the suit was instituted.
In this particular case it is true, as the learned Subordinate Judge had held, that the suit must be treated as pending for the purposes of ascertainment of mesne profits, as the decree in respect of it was preliminary, and for certain purposes a suit remains pending between the preliminary and the final decrees; but the question is in which Court did it remain pending.
The simple answer is that it remained pending in the second Court of the Munsif of Gaya up to the time when the Court at Jehanabad was not established and then automatically became pending in the Court of the Munsif of Jehanabad. since that Court was established."
I think that the question of jurisdiction of a Court over a suit has to be decided in relation to the facts as they stand at the initial stage. And once in any case it is found that initially that Court had the necessary jurisdiction to entertain that suit, it follows from it that the jurisdiction to dispose of that suit was then and there vested in that Court till its conclusion and any judgment given in exercise of that power cannot be said to be one without jurisdiction, unless it is proved that in the meantime that Court was divested of that power completely.
The power to entertain a suit is one and the power to dispose it of is another. The former, it ia true, depends on its basic jurisdiction which in law is generally put under four heads, namely (1); territorial, (2) pecuniary, (3). personal and (4) subject matter! But the latter emerges out of th& condition that the suit has been properly and legally entertained and not from the condition that the Court continues to possess what is necessary; for it to entertain the suit in its initial stage.
In other words, the rule of law is that once a Court is legally put in seisin of a case, it continues to be in seisin of it till it is finally adjudicated by that Court unless the case is transferred from there in due course of law or its jurisdiction to dispose of the suit finally is ended by legislation in express terms or by necessary implication.
I, with all respect to the learned Judges who-decided the case in 1936 Pat 546 (AIR V 23) (A)', feel hesitant to accept the view that a mere notification issued by the State Government under Sections 13 (1) and 14 (1), Bengal, Agra and Assam Civil Courts Act, 1887, altering the local limits of the jurisdiction of a civil Court can result in the old Court losing its jurisdiction even on matters already then pending before it. There is no provision in the Bengal, Agra and Assam Civil Courts Act, 1887, which gives any support to the view expressed in that case either in express terms or by necessary implication.
On the contrary Section 17, Bengal, Agra and Assam Civil Courts Act, 1887, if not expressly at least by implication, shows that the jurisdiction of the old Court over suits pending before it in relation to properties lying in areas excluded by the notification under Section 13 (1). or Section 14 (1) continues even on its operation and publication. Section 17 (1) of that Act reads:
"17(1) Where any Civil Court under this Act has from any cause ceased to have jurisdiction with respect to any cass, any proceedings in relation to that case, which, if that Court had not ceased to have jurisdiction, might have been had therein may be had in the Court to which the business of the former Court has been transferred."
In this section the word used is 'may' and not 'shall' and this is more consistent with the view that 011 the notification issued under Sections 13 (1) and 14 (1), Bengal, Agra and Assam Civil Courts Act, 1887, the new Court may also have jurisdiction in matters pending before the old Court but not within the meaning that the old Court completely loses all its jurisdiction over that matter.
In other words, Section 17 contemplates that over matters already pending in the old court a concurrent jurisdiction is created & it is open to the parties to take further action in that matter either in the old Court or in the new Court. This view gets full suoport from the observations ma,de in --'Chokkalinga v. Velayudha', 1925 Mad 117 (AIR, V 12} (B). Therein Phillips J. observed:
"The jurisdiction of a Court consists in Its power to entertain suits, and when once a suit has been properly entertained, it is difficult to understand how that jurisdiction is removed unless it is specifically so done by the order of a competent authority. Once the suit has been entertained, the remaining proceedings taken therein are not taken by reason of any particular territorial jurisdiction, but in the exercise of the powers vested in the Court to try suits generally and consequently the only time at which the territorial jurisdiction comes into operation is at the time of filing the suit.
Once the Court has seisin of the case, it has jurisdiction to try it to its conclusion, unless there is any reason for holding that that jurisdiction has been removed. If this be the right principle and I think it is, it would account for the fact that there is no provision in the Civil Procedure Code for the trial of suits, pending in a Court which had territorial jurisdiction at the time of their institution, after such jurisdiction has been removed before the trial is concluded. In this view, it appears to me that the final decree passed in this suit was not passed without jurisdiction."
Here also on the principle stated above, I think the correct position is that the Court at Arrah even on the issue of the aforesaid notifications under Sections 13 (1) and 14 (1), Bengal, Agra and Assam Civil Courts Act, 1887, continued to retain its jurisdiction over the title suit giving rise to the final decree under execution. In that view of the matter, it cannot be said that the decree passed by the Court at Arrah on 15-1-1955, was one without jurisdiction.
4. I, however, need not give any concluded opinion on this aspect of the problem for these appeals can be disposed of on a small point that no such objection on the point of territorial jurisdiction was ever taken at any stage in the proceeding started for the ascertainment of mesne profits and for the passing of the final decree in the Court of the Subordinate Judge at Arrah nor in any other proceeding taken in connection with that matter barring the one raised at the execution stage. Section 21, Civil P. C., directs that-
"No objection as to the place of suing, shall be allowed by any appellate or 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."
Such an objection not having been raised, as already stated, above, either in the proceeding for the final decree or in any other proceeding connected therewith, it is, I think, not open now to the judgment-debtors to raise that objection in the execution proceeding. Mr. Lal Narayan Sinha in support of this view has rightly laid reliance on the decisions in -- 'Posan Singh v. Inderdeo Singh', 1952 Pat 328 (AIR V 39) (C); '1925 Mad 117 (AIR V12) (B)', -- 'Zamindar of Ettiyapuram v. Chid-ambaran Chetty', 1920 Mad 1019 (AIR V 7) (FB) (D)'; and -- 'Dirgopal Rai v. Kesho Prasad Singh', 1928 Pat 324 (AIR V 15) (E).
Of these decisions, the decision in '1920 Mad 1019 (AIR V 7) (PB) (D)', is that of a Full Bench and related to a mortgage suit which had been instituted sometime in 1900 in the subordinate Court of Madura East and wherein the preliminary decree had been obtained from that Court. In May 1910 the subordinate Court at Madura East was abolished and a Subordinate Judge's Court of Ramnad was established with jurisdiction over the whole of Ramnad district except the District of Munsifi of Manamadura where the property under mortgage lay.
Therefore, the mortgage suit by virtue of Section 37, Civil P. C., was transferred by operation of law to the District Court of Ramnad wherein the property under mortgage was situated. But in spite of it in 1916 the proceedings for a decree for sale under Order 34, Rule 5, Civil P. C., were taken by the plaintiff in the subordinate Court of Ramnad, which, as already stated, had no jurisdiction over the suit and it was that Court which passed the final decree in 1917.
In the execution proceedings for the first time the plea was raised that that decree was a nullity as it had been passed by a Court which had no jurisdiction over the suit. On- these facts the following three questions had been referred to the Full Bench for decision-
"(1). Whether Section 21, Civil P. C., governs cases of want of territorial jurisdiction?
(2) Whether Section 21 is applicable to execution, proceedings? And (3) Whether a party who does not raise objection to jurisdiction when a decree is made absolute is not entitled! to plead in execution that the order was passed without jurisdiction?"
In answer to the first question, Wallis C. J., Who delivered the judgment on behalf of the Fuil Bench, laid down:
"I am clearly of opinion that the provisions of Section 21, Civil P. C., apply to all objections based on the alleged infringement of the provisions of Sections 16 to 18, Civil P. C., as regards the institution of suits relating to immovable property."
On the second question the learned Chief Justice 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 objections 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 Courts.
The ordinary way of questioning a decree passed without jurisdiction is on appeal or in revision, and if this is forbidden, a Court of first instance cannot in execution do that which the appellate or revisional Court is precluded from doing."
The third question was also answered in the negative.
5. Therefore, on the authority of this Full Bench it is clear that the validity of the decree under execution cannot be challenged on the ground that it was not passed by a Court having territorial jurisdiction over the subject-matter of the suit when such an objection was not raised at any stage in the suit or in any appeal or revision connected therewith. That being so, on that ground alone, it has to be held that the appeals are without substance. They are accordingly dismissed with costs.
Misra, J.
6. I agree.