BHANDARI, C. J. - (1.) THIS is a special appeal under sec, 18 of the High Court Ordinance from the judgment dated 9th April, 1964 of Jagat Narayan J. in a case arising under sec. 47 of the Code of Civil Procedure.
(2.) THE brief facts of the case are that on 23rd December, 1955 a decree was passed in a suit for specific performative of on agreement to sell two plots of land by the Civil Judge, Pali. THE decree was in favour of Misrimal and Hanwantraj and against Tarachand, Birdichand and Roopchand. This decree was not drawn up in proper form, but the substance of the decree is that the defendants shall deliver possession of two the alas (plots mentioned in para 2 (b) of the plaint to the plaintiffs and that the defendants will execute a sale deed of these plots in favour of the plaintiffs, and that according to the agreement Ex. 1, the total sale-price of the plots in dispute is Rs. 4,000/- out of which Rs. 1,000/- has already been received by the defendants and Rs. 2545/7/* are due to the plaintiffs from the defendants which will be adjusted with interest at the rate of 6% per annum at the time of registration of the sale deed and in case the total amount does not make up of Rs. 4,000/-, the defendants will be entitled to get the balance from the plaintiffs at the time of registration of the sale-deed and the defendants will get the sale deed registered. These two plots of land were situated in the town of Rani which was within the jurisdiction of Civil Judge, Pali when the decree was passed on 23rd December, 1955. Later on, the jurisdiction over the town of Rani was transferred to the Civil Judge, Sirohi. After such transfer, the decree-holders applied for execution of the decree on 19th March, 1956. The Civil Judge, Pali, did not transfer the decree so far as it related to the delivery of possession of the two plots of land for execution to the Civil Judge, Sirohi but proceeded to execute the decree. Possession over one of the plots of land was delivered by the Amin under order of the court to the decree-holder on 26th May, 1956 without any notice to the judgment-debtors. Possession over the second plot also was delivered on 22nd June, 1958. This time also no notice was issued to the judgment-debtors. Before delivery of the possession of the second plot of land, the judgment debtors had sold the second plot to Mohanlal. Mohanlal filed application under Order 21. rule 97 C. P. C. which was dismissed on 24th May, 1958. An application under sec. 151 C. P. C. was filed again by Mohanlal on 22nd July, 1958. In this application, the judgment-debtors were also made parties and they filed a reply on 25th July, 1958 supporting the case of Mohanlal. Mohanlal's application u/s. 151 C. P. C was dismissed by the Civil Judge, Pali on 23rd August, 1958. Both Mohanlal and Tarachand filed an appeal to the District Judge, Pali which was dismissed on 13th December, 1958. Both of them filed a second appeal to this Court which was dismissed in limine on 25th February, 1959. Thereafter notices were issued to the judgment-debtors to have the sale-deed executed. In reply to this, the judgment-debtors filed another objection application on 29th September, 1959, but it was not stated therein that the executing court had no jurisdiction to execute the decree. The sale-deed was registered on 14th November, 1959. Thereafter the judgment-debtors filed the objection applications that the executing court which had executed the decree for possession had no jurisdiction to execute it. This objection was dismissed by the executing court and so also their appeal. The judgment-debtors then filed a second appeal in this Court. The learned Single Judge took the view that even if the appellate court, Pali lacked jurisdiction in execution of the decree, the judgment-debtors were estopped from raising the question of jurisdiction of the appellate court because they did not raise it at the earliest possible opportunity, and also because the principle of constructive res judicata applied to the case. Taking this view of the case, he dismissed the appeal of the judgment-debtors. He, however, granted permission to file an appeal to the Division Bench under sec. 18 of the High Court Ordinance. This appeal has thus been filed under that provision. We anticipate great difficulty in applying the principle of constructive res judicata in this case for various reasons. We have, therefore, thought it proper to decide this appeal by examining the question whether the Civil Judge, Pali bad actually no jurisdiction to give possession of the two plots of land in execution of the decree and the judgment-debtors were entitled to recover back the possession. The main argument that has been urged by Mr. Parakh on behalf of the judgment-debtors is that the decree so far as it relates to the delivery of the possession of the two plots of land has been executed by a court which had no jurisdiction to give delivery, and there being total lack of jurisdiction in that court, the order of delivery by that court was void in law. The general principle is that the judgment or decree of a court which was not competent to entertain the proceedings in which such judgment or order has been made is not effective. This principle is recognised in international law and most of the domestic law is based on this principle. This principle is enunciated by Mookerjee J. in Gurdeo Singh vs. Chandrikah Singh and Chandri-kah Singh vs. Rashbehary Singh (1) in the following terms : - "a Court cannot adjudicate upon a subject matter, which does not fall within its province as defined or limited by law ; this jurisdiction may be regarded to be essential, for jurisdiction over the subject matter is a condition precedent to the acquisition of authority over the parties, and, if a Court has no jurisdiction over the subject matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal, or its nullity may be established, when it is sought to be relied upon in some other proceeding : See Hawes on Jurisdiction, pages 12-16; Harmann on Estoppel sec. 110, and Frankel vs. Sutterfield (1890) 19 Atlantic Rep. 898. " We have thus to examine whether possession of territorial jurisdiction is of such essence in cases governed by Civil Procedure Code that without it any order passed by the executing court is to be treated as nullity. The jurisdiction of civil courts is defined by the Code of Civil Procedure. Sec. 16 of that Code lay down that suits for the recovery of immovable property with or without rent or profits shall be instituted in the Court within the local limits of whose jurisdiction the property is situte. Sec. 17 provides for the case when immovable property is situated within the jurisdiction of different courts and it has been laid down that the suit may be instituted in any court within the local limits of whose Jurisdiction any portion of the property is situate. Sec. 21 lays down 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. There is no dispute in this case that the Civil Judge, Pali, had jurisdiction to entertain the suit in respect of both the plots of land and upto the stage the decree was passed, it had not ceased to have jurisdiction over those plots. The Civil Procedure Code does not stop after defining the place of suing. It lays down separate provisions about execution. These provisions are contained in Part II of the Civil Procedure Code. In the matter of execution, these provisions govern the jurisdiction of the courts which are to execute the decree. Sec. 38 provides that the decree may be executed either by the court which passed it, or by the Court to which it is sent for execution. Sec. 37 defines the expression "the Court which passed the decree" in relation to execution of decree. Sec. 37 runs as follows: - "the expression "court which passed decree", or words to that effect, shall in relation to the execution of a decree, unless there is anything repugnant in the subject or context, be deemed to include, - (a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and (b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of decree, would have jurisdiction to try the suit. " There is some controversy about the interpretation of clause (b) of this section with which we are not concerned. But there can be no doubt that under sec. 38, a decree may be executed by the court which passed it. This is what their Lordships of the Supreme Court have laid down in Merla Ramanna vs. Nallaparaju and others (2) wherein it has been observed: - "and it is settled law that the Court which actually passed the decree does not lose its jurisdiction to execute it, by reason of the subject matter thereof being transferred subsequently to the jurisdiction of another court. Vide 'seeni Nandan V. Muthuswamy Pillai', AIR 1920 Mad. 427 (FS) - 'masrab Khan V. Debnath Mali' AIR 1942 Cal. 321 and 'jagannath V. Ichharam', AIR 1925 Bom. 414. " Mr. Parakh has argued that these observations should not be taken to mean that the court which has ceased to have jurisdiction over the immovable property to which the decree relates has the jurisdiction to proceed to deliver its possession without transferring the decree to the court which has acquired jurisdiction over the immovable property as required under section 39 of the Code of Civil Procedure. His argument is that the court which passed the decree may entertain the application for execution, but in the cases covered by sec. 39 (1), it is incumbent on that court to send it for execution to the other court which has acquired jurisdiction over the immovable property which is to be delivered under the decree. He has argued that in none of the cases referred to by the Supreme Court the view has been taken that apart from entertaining the execution application, the court which passed a decree could proceed to execute the decree even in circumstances mentioned in sec. 39 (1) and that the force of sec. 39 (1) is that it is incumbent for the Court which passed the decree to transfer the decree to the other court in the circumstances mentioned in sec. 33 (1 ). This leads us to consider the force of sec. 39 in such cases. Sec. 39 runs as follows: - "39. Transfer of decree.- (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court - (a) If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain within the local limits of the jurisdiction of such other Court, or (b) If such person has not property within the local limits of the jurisdiction of the Court, which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or (c) If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or (d) If the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. (2) The Court which passed a decree may of its own motion send for execution to any subordinate Court of competent jurisdiction. " It is contended that even though the word 'may' has been used in the opening part of sec. 39, yet in all cases of the kind mentioned in clauses (a) to (c) it is incumbent on the court which passed the decree to send it for execution to another court for the simple reason that the court which passed the decree has ceased to possess territorial jurisdiction either over the person or over the property of the judgment debtor and it is only the court which possesses such territorial jurisdiction which can execute the decree. It is urged that in such matters, the Court cannot travel beyond the local limits of its jurisdiction and anything done by a Court which does not possess territorial jurisdiction in these matters must be deemed to be void in the eye of law. In the international law, the possession of territorial jurisdiction by a court in such matters may be considered necessary for passing a legally valid order. But the same cannot be said with regard to the domestic courts, the local limits of whose jurisdiction has been laid down by statute only for the sake of convenience and effectiveness. As pointed out by their Lordships of the Supreme Court in Hira Lal Patni, Appellant v. Sri Kali Nath, Respondent (3), "it is well settled that the objection as to local jurisdiction of a court does not stand on the same footing as an objection to the competence of a court to try a case. Competence of a court to try a case goes to the very root of the jurisdiction, and where it is a lacking, it is a case of inherent lack of jurisdiction. On the other hand, an objection as to the local jurisdiction of a court can be waived and this principle has been given a statutory recognition by enact ments like S. 21 of the Code of Civil Procedure. This principle has been again reiterated by their Lordships of the Supreme Court in Bahrein Petroleum Co, Ltd. , Appellant v. P. J. Pappu & another, Respondents (4) where it has been observed that where the defendants neither resided nor carry on business, nor any part of the cause of action arises within the local limits of the Court, such court has no territorial jurisdiction to try the suit under sec. 20 of the Code of C. P. 1908. But sec. 21 of the Code provided an exception, and a defect as to the place of suing, that is to say, the local venue for suits cognisable by the Courts under the Code may be waived under this section. It is further observed that independent of sec. 21, the defendant may waive the objection and may be subsequently precluded from taking it. Thus it is clear from these authoritative pronouncements that the judgments and orders passed by a court which has no territorial jurisdiction under the provisions of the Code of Civil Procedure are not void ipso facto. In this connection, we may quote the following passage from "freeman on Judgment Volume 1", Article 368: - "an erroneous venue is rarely a jurisdictional defect. At most it furnishes reason for having the cause changed to the proper county and if that is not done as a result of oversight or neglect of the parties or unwillingness on the part of the judge to allow the transfer, jurisdiction which has properly attached is not thereby lost. This would not be true, of course, where owing to the character of the suit and the nature of its subject matter the courts of the county where it is prosecuted would have no power under the law to entertain it. A case in point is that of a judgment for taxes, invalid because the suit is brought and prosecuted contrary to law in a county other than the one in which are situated the lands upon which the taxes are due. But in general it is not material collaterally that suits respecting land are instituted and carried on in counties other than that in which the land is located. "
(3.) THIS being the position, there is no reason to be unduly oppressed by the doctrine that lack of territorial jurisdiction makes an order or judgment a nullity (doctrine which is no doubt applicable in international law and to hold that under sec. 39 C. P. C. it is incumbent for the Court which passed a decree to send it for execution to another court in cases provided in clauses (a), (b) and (c) of sec. 39 (1) C. P. C. and thus to infer that sec. 38 is dependent of sec. 39 to such an extent that the court which passed a decree cannot proceed to execute it in the circumstances mentioned in clause (a) to (c) of sec. 39 (1) and if it does so, the order passed by the court which passed the decree in taking any action in the matter provided in these clauses are to be struck down as nullity. Sec. 39 (1) purposely used the word "may" and that this word "may" cannot be construed as "shall or "must". Again, the language of sec. 39 (l) (d) shows that under certain circumstances, the court which passed a decree may send it to be executed to the other court and in that case the court should record an order to that effect. Thus under sec. 39 (l) (c) it is discretionary for the court which passed a decree to send it to such other court for execution and it is not incumbent on it to do so. The word "may" which occurs in the opening part of the section cannot thus be construed as "must'' in cases falling under clause (d ). Sec. 39 has been enacted for the purpose that it will be more convenient for a court which passed a decree to get it executed by a court within the local limits of whose jurisdiction the person resides or the property is situate in cases mentioned in clauses (a) to (c), but it does not debar a court which passed a decree itself to execute it if the circumstances of the case so warrant or it has the means to do so. We do not mean to say that the court which passed a decree should itself embark upon executing the decree under all circumstances in cases provided in clauses (a) to (c) of sec. 39 (1 ). Normally it will send it for execution to the court within the local limits of whose jurisdiction the defendant resides or the property is situate, but it has the jurisdiction to proceed to execute it. There are certain cases in which the view taken is that the word 'may' in sec. 39 may be construed as 'must. ' In this connection we may refer to Vasi-reddi Srimanthu and others, Appellants v. Devabhaktuni Venkatappayya and another, Respondents (5 ). After referring to sec. 39, Gentle G. J. observed as follows: - "since sub-sec. (1) of the section requires a decretal Court to send its decree to another Court for execution when a judgment debtor's property is within the jurisdiction of that Court it must follow that a decretal Court cannot itself execute against property outside its own territory, if it could do so, transmission would be unnecessary. Further manifestation of this proposition is found in sub-section (2), which enables a decretal Court suo motu to transmit its decree for execution to a subordinate Court, but only to one of competent jurisdiction; this must mean a Court which has jurisdiction; that is to say, a Court within whose limits the property against which execution will lie is situate. Section 42 of the Code enacts that: "the Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. " Since a decretal Court can execute only in respect of property lying within its territory, it follows that that is the extent of a transferee Court's jurisdiction. The Code provides two exceptions to the above restriction upon the power of a Court to execute: (a) where a suit is to obtain relief respecting compensation for or wrong to immovable property situate within the jurisdiction of different Courts, S. 17 allows a suit to be instituted in any Court within whose territory any portion of the property is situate; since such Court has jurisdiction to execute against the outlying properties, in respect of which it can pass a decree, (b) Under O. 21, R. 3 of the Code, where immovable property forming one estate is situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate. The above provision of the Code would be unnecessary if a Court could execute a decree against outlying property and the presence in the Code of those enactments manifests the ordinary restriction upon a Court's powers of execution. . . . . . . . . . . . . . . . . . . . . . "sec. 39 is clear and unambiguous in its meaning and effect; a Court passing a decree must have territorial jurisdiction in respect of property against which it can order execution, if it has not got that jurisdiction, it cannot order execution and must send the decree for that purpose to the Court competent to do so. " With great respect, in taking this view the learned Chief Justice has construed an enabling provision as laying down a mandatory direction. The learned Chief Justice has conceded that under sec. 17 a suit which has been instituted in a court in which only a part of the property is situate that court has got jurisdiction to execute the decree passed in that suit against the outlying properties which are not within its jurisdiction. Sec. 17 mentions that a court may entertain a suit and try and dispose it of even in respect of the property which is not situate within its jurisdiction if some portion of the property in suit Is situate within its jurisdiction in cases provided in that section. But in the matter of execution, separate provisions have been made in the Civil Procedure Code and they are contained in Part II. There is no reason to treat the provisions of sec. 17 as an exception to sec. 39. Again, we find it difficult to draw a distinction between sec. 16 and sec. 17 in the matter of execution. It such distinction is drawn, the result would be that in cases provided under sec. 17 if A property is within the local limits of jurisdiction of court X and B properly is within the local limits of jurisdiction of court Y, the court X can try the suit in respect of both A and B, and can also execute the decree with respect to the property B without sending it to the court Y. But suppose in a case where sec. 16 C. P. G. is applicable and both properties A and B are situated within the local limits of court X and after the decree has been passed or even before that after the suit has been instituted, both the properties A and B by appropriate notification cease to be within the jurisdiction of Court X and fall within the local limits of the jurisdiction of Court Y, the court cannot execute the decree because of sec. 39. With great respect, we fail to appreciate this distinction. Of course, for the sake of convenience, the Court X should send the decree for execution to Court Y. But viewed from the point of jurisdiction, the court has the jurisdiction to execute the decree and does not cease to possess that jurisdiction simply because the properties A and B after the passing of the decree have gone out of the local limits of its jurisdiction. Reference in the Full Bench decision has also been made to Order XXI Rule 3 C. P. C. which runs as follows: - "3. Lands situate in more than one jurisdiction. Where immovable property forms one estate or tenure situate within the local limits of the jurisdiction of two or more Courts, any one of such Courts may attach and sell the entire estate or tenure. " From the presence of this rule in the Code it was inferred that had the court which passed the decree had jurisdiction to execute the decree about the immovable property which did not fall within its territorial jurisdiction, there was no necessity for making this rule. This rule is very general and may be utilised not only by the court which passed the decree but also by the transferee court or any other court. Even before that the Calcutta High Court had taken the view in Ram Lal Moitra (Defendant) vs. Rama Sundari Dabia and another (Plaintiffs) (6) that an estate or tenure situate within the local limits of jurisdiction of different courts may be attached and sold by anyone of such court. Another rule which may be referred is Order 21, rule 48. That is a specific provision providing for attachment of salary or allowances of a Government Servant or the railway company or local authority. ;