Case Note & Summary
The appeal arose from a judgment of the High Court of Jharkhand which restored an objection under Section 47 CPC filed by the first respondent in execution proceedings, challenging the territorial jurisdiction of the court that passed the partition decree. The background facts are that a partition suit was instituted in 1985 at Ranchi by Smt. Saroja Rani seeking 1/4th share in properties at Ranchi and Varanasi. A preliminary decree was passed ex-parte on 13 June 1990, followed by a final decree on 5 April 1991. After the death of the mother, a supplementary final decree was passed on 18 December 2013 modifying shares to 1/3rd each. The appellant filed execution proceedings in 2014. The first respondent filed an objection under Section 47 CPC in 2015 contending the decrees were without jurisdiction as the Ranchi court lacked territorial jurisdiction. The executing court dismissed the objection on 10 March 2016, holding it could not go behind the decree. The High Court, in a petition under Article 227, set aside that order and restored the objection, holding that the executing court could entertain the plea. The Supreme Court allowed the appeal, setting aside the High Court's order. The Court analyzed Section 21 CPC, which provides that an objection to territorial jurisdiction must be taken at the earliest opportunity in the trial court and only allowed if there is failure of justice. The Court held that territorial jurisdiction does not go to the inherent jurisdiction of the court; a decree passed without territorial jurisdiction is not a nullity unless the lack of jurisdiction appears on the face of the record. Since the objection was not raised at the earliest opportunity and no failure of justice was shown, the executing court could not entertain it. The Court also noted that the first respondent had participated in other proceedings and was aware of the suit. The appeal was allowed, the High Court's order was set aside, and the executing court's order dismissing the objection was restored.
Headnote
A) Civil Procedure - Territorial Jurisdiction - Objection in Execution - Section 47, Code of Civil Procedure, 1908 - The issue was whether an objection to territorial jurisdiction can be raised in execution proceedings. The Supreme Court held that an objection to territorial jurisdiction does not go to the root of inherent jurisdiction and must be raised at the earliest opportunity in the trial court under Section 21 CPC. The executing court cannot entertain such objection unless lack of jurisdiction appears on the face of the record. The High Court's order restoring the objection was set aside. (Paras 9-13) B) Civil Procedure - Section 21 CPC - Conditions for Objection to Territorial Jurisdiction - Section 21(1), Code of Civil Procedure, 1908 - The Court held that under Section 21(1), an objection to territorial jurisdiction can only be entertained by an appellate or revisional court if it was taken in the court of first instance at the earliest possible opportunity and there has been a consequent failure of justice. Both conditions must be satisfied. (Paras 9-10) C) Civil Procedure - Executing Court's Power - Nullity of Decree - Section 47, Code of Civil Procedure, 1908 - The Court distinguished between lack of inherent jurisdiction (e.g., subject matter) and territorial jurisdiction. A decree passed without inherent jurisdiction is a nullity and can be challenged in execution, but an objection to territorial jurisdiction does not render the decree a nullity unless it appears on the face of the record. (Paras 11-13)
Issue of Consideration
Whether an objection as to the lack of territorial jurisdiction of the court which passed the decree can be raised in execution proceedings under Section 47 of the Code of Civil Procedure, 1908
Final Decision
Appeal allowed. Impugned judgment and order of the High Court of Jharkhand dated 15/17 July 2018 is set aside. The order of the executing court dated 10 March 2016 dismissing the objection under Section 47 CPC is restored. No order as to costs.
Law Points
- Objection to territorial jurisdiction must be raised at earliest opportunity in trial court
- not in execution proceedings
- Section 21 CPC bars such objection unless failure of justice shown
- Executing court cannot go behind decree on ground of territorial jurisdiction unless lack of inherent jurisdiction appears on face of record
