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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 14 of 1953.

Appeal by special leave granted by the Supreme Court, by its Order dated the 29th October, 1951, from the Judgment and Decree dated the 19th July, 1950, of the High Court of Judicature at Patna (Sinha and Rai JJ.) in appeal from Appellate Decree No. 1152 of 1946 from the Judgment and Decree dated the 24th day of May, 1946, of the Court of the 1st Additional District Judge in S. J. Title Appeal No. I of 1946 arising out of the Judgment and Decree dated the 27th November, 1945, of the First Court of Subordinate Judge at Monghyr in Title Suit No. 34 of 1944.

(1) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278, The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of section II of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed 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 execution and even in collateral proceedings. 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 the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be' determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. The question is what is the effect of section 11 of the Suits Valuation Act on this position.

(2) I.L.R. 55 All. 315.

(3) I.L.R. 27 Patna 109; A.I.R. 1949 Patna 278.

defects of jurisdiction arising by reason of over-valuation, or under-valuation but that, in fact, this object has not been achieved. We are therefore clearly of opinion that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not-have been competent to hear it on a correct valuation of the suit as ultimately determined. It is next argued that in the view that the decree of the lower appellate Court is liable to be reversed only on proof of prejudice on the merits, the second appellate Court must, for the purpose of ascertaining whether there was prejudice, hear the appeal fully on the facts, and that, in effect, it should be Heard as a first appeal. Reliance is placed in support of this contention on the observations of two of the learned Judges in Ramdeo Singh v. Rai Narain (1). There, Sinha J. observed that though the second appeal could not be treated as a first appeal, prejudice could be established by going into the merits of the decision both on questions of fact and of law,, and that that could be done under section 103 of the Civil Procedure Code. Meredith J. agreed that for determining whether there was prejudice or not, there must be an enquiry on the merits of the decisions on questions of fact but he was of opinion that that could be done under section I I of the Suits Valuation Act itself. Das J., however, declined to express any opinion on this point, as it did not arise at that stage. The complaint of the appellants is that the learned Judges who heard the second appeal, though they purported to follow the decision in Ramdeo Singh v. A. Narain (1) did not, in fact, do so, and that there was no consideration of the evidence bearing on the questions of fact on which the parties were in dispute.

That brings us to the question as to what is meant by prejudice" in section II of the Suits Valuation Act. Does it include errors in findings on questions of fact in issue between the parties ? If it does, then it will be obligatory on the Court hearing the second appeal to examine the evidence in full and decide whether the (1) I.L.R. 27 Patna tog; A.I. R, 1949 Patna 278.

conclusions reached by the lower appellate Court are right. If it agrees with those findings, then it will affirm the judgment; if it does not, it will reverse it. That means that the Court of second appeal is virtually in the position of a Court of first appeal. The language of section 11 of the Suits Valuation Act is plainly against such a view. It provides that overvaluation or under-valuation must have prejudicially affected the disposal of the case on the merits. The prejudice on the merits must be directly attributable to over-valuation or under-valuation and an error in a finding of fact reached on a consideration of the evidence cannot possibly be said to have been caused by over-valution or under-valuation. Mere errors in the conclusions on the points for determination would therefore be clearly precluded by the language of the section. It must further be noted that there is no provision in the Civil Procedure Code, which authorises a Court of second appeal to go into questions of fact on which the lower appellate Court has recorded findings and to reverse them. Section 103 was relied on in Ramdeo Singh v. Raj Narain (1) as conferring such a power. But that section applies only when the lower appellate Court has failed to record a finding on any issue, or when there had been irregularities or defects such as fall under section 100 of the Civil Procedure Code. If these conditions exist, the judgment under appeal is liable to be set aside in the exercise of the normal powers of a Court of second appeal without resort to section 11 of the Suits Valuation Act. If they do not exist, there is no other power under the Civil Procedure Code authorising the Court of second appeal to set aside findings of fact and to re-hear the appeal itself on those questions. We must accordingly hold that an appellate Court has no power under section 1 1 of the Suits Valuation Act to consider whether 'the findings of fact recorded by the lower appellate Court are correct, and that error in those findings cannot be held to be prejudice within the meaning of that section.