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3. A further complication arises on account of the fact that territorial jurisdiction in respect of the properties in suit was transferred from the Bapatla Sub-Court to the new Subordinate Judge's Court created at Tenali with effect from 1st August, 1930. The creation of the Tenali Subordinate Judge's Court was sanctioned under G. O. No. 2529 Law General Department, dated 16th June, 1930, published in the Fort St. George Gazette, on 24th June, 1930. Lists of the original suits, execution petitions, insolvency petitions and miscellaneous petitions relating to the transferred jurisdiction were made and the concerned proceedings were transferred to the Tenali Subordinate Judge's Court by order of the District Judge. But due possibly to the fact that O.S. No. 63 of 1922 had already been disposed of by the passing of both the preliminary and the final decrees therein and the fact that no execution proceedings had been instituted, the lists aforesaid did not include this suit or any proceedings connected therewith. The position therefore was that the Tenali Subordinate Judge's Court which has passed the order now under appeal acquired territorial jurisdiction over the mortgaged properties, but the transfer of business made to it from the Bapatla Subordinate Judge's Court left out the suit with which we are concerned. On this circumstance is based the second contention of the appellant that the Tenali Subordinate Judge's Court has no jurisdiction to execute the decree as ruled in Ramier v. Muthukrishna Ayyar(1932) 62 M.L.J. 687 : I.L.R. 55 Mad. 801 (F.B.). '

5. The respondent's advocate has however sought to get over these difficulties by urging (1) that it is not open to the appellant to plead that there is no executable decree by reason of earlier orders made by the Tenali Subordinate Judge's Court, and (2) that those orders also debar him from contending that the Tenali Sub-Court had no jurisdiction to direct the execution of the decree. In other words, the appellant's contentions are met by the plea of res judicata.

6. It would seem that the first execution petition, namely, E. P. No. 43 of 1931 was filed in the Tenali Sub-Court for the purpose of having the decree executed against the parties other than the appellant and his predecessor-in-title which parties were bound by the preliminary and final decrees passed by the Bapatla Sub-Court. In this execution petition some of the mortgaged properties were sold and the amount realised went in part satisfaction of the decree. As the appellant was not a party to this execution petition, the proceedings therein have no relevance to the present appeal.

10. But it is contended that the Tenali Sub-Court which made the order now under appeal had no jurisdiction either to execute the decree or to make the order sought to be pleaded as constituting res judicata. There can be no doubt that the Tenali Sub-Court cannot execute the decree unless the Bapatla Court which passed the decree had sent it to the Tenali Sub-Court for execution under Section 39 of the Civil Procedure Code and if the objection had been taken by the appellant in the first instance, that is, in E. P. No. 57 of 1937, it should have prevailed. But now after the order for execution which had been made in it though ex parte the objection to the jurisdiction cannot be sustained unless we can hold that it is not a case of a mere irregularity in the assumption or exercise of jurisdiction, as distinct from one of absolute want of jurisdiction. The leading case on the subject is Ledgard v. Bull (1886) L.R. 13 I.A. 134: I.L.R. 9 All. 191 (P.C.) decided by the Privy Council in 1886. The same principle was reiterated in Minakshi Naidu v. Subramania Sastri (1887) L.R. 14 I.A. 160 : I.L.R. 11 Mad. 26 (P.C). In Ledgard's case the Judicial Committee observed as follows:

We have therefore to see under which class the objection to jurisdiction here raised really falls; and for this purpose we must consider whether the Tenali Sub-Court had jurisdiction over the subject-matter of the execution petition; for this is the true test. There can be no doubt that after the transfer of territorial jurisdiction; to the Tenali Sub-Court it is that Court that had the jurisdiction over the properties. Section 39 which empowers the Court which passed the decree to send it for execution to another Court, states that this procedure may be adopted if, the decree directs the sale or delivery of immovable property outside the local limits of the jurisdiction of the Court which passed it, that is to say, the transfer of the decree for execution to another Court is permitted if the Court in which the property directed to be sold or delivered is situated within the territorial jurisdiction of that other Court. We consider that the true effect of Section 39 is to recognise the transferee Court as having inherent jurisdiction, to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub-Court when proceedings were commenced in it, but that objection not having been taken in the first instance, the judgment-debtor (the appellant ) must be held to have waived it.