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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 116 OF 2019 (@SLP(C) No(s). 26932/2018)

SNEH LATA GOEL                             Appellant(s)

                                VERSUS

PUSHPLATA & ORS.                             RESPONDENT(s)

J U D G M E N T

DR DHANANJAYA Y CHANDRACHUD, J.

1 Leave granted.

2 This appeal arises from a judgment and order of the High Court of Jharkhand at

Ranchi dated 15/17 July 2018.    

3 The facts lie in a narrow compass:

On 9 May 1985, a partition suit1 was instituted by Smt. Saroja Rani, daughter of Late

1 154/1985

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Rai Sri Krishna (since deceased), in respect of her 1/4 th share in the suit property which

comprises of properties at Ranchi and Varanasi.  The suit was instituted at Ranchi in

the Court of the Special Subordinate Judge. The defendant in that suit (since deceased)

filed a petition before the High Court of Judicature at Patna questioning the jurisdiction

of the Ranchi Courts. The petition was disposed of by the High Court on 10 May 1989

with the direction that any objection to jurisdiction would be decided by the Special

Subordinate Judge at Ranchi as a preliminary issue.  A preliminary decree was passed

ex-parte  on  13  June,  1990  granting  the  Petitioner  her  extent  of  1/4 th share  in  the

schedule  property.   A  final  decree  was  passed  on  5  April  1991  confirming  the

preliminary decree passed on 13 June, 1990.

One  of  the  defendants  in  the  partition  suit  filed  a  title  suit2 before  the  Court  of

Subordinate  Judge,  Ranchi.  On  22  July  2003,  the  suit  was  dismissed  for  non-

prosecution. The first respondent filed a title suit3 before the Court of Subordinate Judge

at Varanasi which was dismissed under Order VII, Rule 11 of the CPC on 12 April 2005

on the ground of being barred under Section 21A of the Code of Civil Procedure 1908

(“CPC”). The first respondent filed an application under Order IX Rule 13 in respect of

the title suit filed at Ranchi which was also dismissed as withdrawn on 19 February

2008.

Since the mother of the appellant was alive when the suit was instituted, the claim was

confined to a 1/4th share.  During the pendency of the suit, the mother died.  As a result,

there was a modification in the share of the three sisters at 1/3rd each. On 18 December

2013, the Subordinate Judge at Ranchi passed a supplementary final decree in view of

2 114/1998 3 176/2000

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the death of the mother of the appellant and the first respondent on 9 February 1996.

4 On 12 May 2014, the appellant filed proceedings for the execution of the final

decree at Ranchi.4  On 1 January 2015, the first respondent filed an objection under

Section  47  of  the  Code  of  Civil  Procedure  contending  that  the  decree  dated  13   

June 1990, the final  decree dated 5 April  1991 and the supplementary final  decree

dated 18 December 2013, were without jurisdiction and therefore, a nullity. On 10 March

2015, the first respondent challenged the decree dated 13 June, 1990 in appeal under

Section 96 of the CPC.5 The appeal is pending.

5 On 10  March  2016,  the executing  court  dismissed  the  objections  of  the  first

respondent under Section 47 of the CPC with the following observations:

“The decree holder is entitled to get the fruits of the decree and the executing court cannot go behind the decree. When a decree is made by a court which has no inherent jurisdiction, an objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where the objection as to the jurisdiction of the court to pass the decree does not  appear on the face of  the record and requires examination of the questions raised and decided at trial,  which could have been but have not been raised, the executing  court  will  have  no  jurisdiction  to  entertain  an objection as to the validity of  the decree on the ground of jurisdiction.”

Aggrieved by the order of the executing court, the first respondent initiated proceedings

under Article 227 of the Constitution of India.  The High Court by its impugned judgment

and order came to the conclusion that the executing court was in error in holding that it

lacked jurisdiction to entertain the objection as to the validity of the decree on ground of

an alleged absence of territorial jurisdiction.

4   5/2014 5  43/2015

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6 The High Court observed that the plea that the decree could not be executed on

the ground that it had been passed by a court which had no territorial jurisdiction to

entertain the partition suit could have been raised under Section 47 of the CPC. The

High Court held thus:

“The executing court fell in serious error in law where it has observed that the executing court will have no jurisdiction to entertain an objection as to the validity of the decree on the ground of jurisdiction. Under Section 47 CPC, the petitioner has not challenged the validity of the decree on merits, rather the plea taken by her is that the decree cannot be executed for  it  has  been passed by  a court  which  had no territorial jurisdiction to entertain Partition Suit No.154 of 1985.”

The application raising the objection was hence restored to the file of the executing

court for disposal.

7 Assailing  the  judgment  of  the  High  Court,  these  proceedings  have  been

instituted.

Mr  Mukul  Rohatgi,  learned  senior  counsel  appearing  on  behalf  of  the  appellant

submitted  that  an  objection  to  territorial  jurisdiction  does  not  relate  to  the  inherent

jurisdiction of the civil court. Such an objection has to be addressed before that court

and in the event that the court rejects such an objection, it must be raised before the

competent court in appeal.  Consequently, the High Court was in error in directing the

executing  court  to  deal  with  such  an  objection.   Moreover,  it  was  urged  that  the

respondent was aware of the proceedings which were taking place, which is evident

from the following circumstances:

(i) The respondent had filed a title suit before the Court at Ranchi which was dismissed

for non-prosecution on 22 July 2003;

(ii) The respondent filed a title suit before the Court at Varanasi which was dismissed

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under Order VII, Rule 11 of the CPC on 12 April 2005; and

(iii)  The respondent filed an application under Order IX Rule 13 in respect of the title

suit filed at Ranchi which was also dismissed as withdrawn on 19 February 2008.

Based on these circumstances, it was urged that the objection which has been allowed

to be raised in execution is merely an effort to delay and obstruct the implementation of

the decree which has been passed in the suit for partition.

8 On the other hand, Mr. S. R. Singh, learned senior counsel appearing on behalf

of the respondents, has urged the following submissions:  

(i) An objection to the lack of territorial jurisdiction is an objection to the subject matter

of the suit and hence of a nature that can be raised before the executing court. In

support, reliance is placed on the decisions of this Court in Kiran Singh  v Chaman

Paswan6 and Harshad Chiman Lal Modi v DLF Universal Ltd.7; (ii) The impugned order of the High Court is an interlocutory order and hence it is not

appropriate  at  this  stage  to  entertain  a  proceeding  under  Article  136  of  the

Constitution of India; and

(iii) The case of the respondents all along has been that the property on the basis of

which jurisdiction was founded at Ranchi did not belong to the common ancestor

and in which event, the civil court at Ranchi had no jurisdiction to entertain the suit

for partition.

9 In  assessing  the  merits  of  the  rival  submissions,  it  would,  at  the  outset,  be

necessary to advert to the provisions of Section 21 of the CPC.

“Section 21(1) postulates that no objection as to the place of suing shall  be allowed by  any  appellate  or  revisional  court

6  AIR 1954 SC 340 7  (2005) 7 SCC 791

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unless the objection was taken in the court of first instance at the earliest possible opportunity and in all cases where issues are settled on or before such settlement, and unless there has been a consequent failure of justice.

(2)  No  objection  as  to  the  competence  of  a  Court  with reference  to  the  pecuniary  limits  of  its  jurisdiction  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.

(3) No objection as to the competence of the executing Court with  reference to  the  local  limits  of  its  jurisdiction  shall  be allowed  by  any  Appellate  or  Revisional  Court  unless  such objection  was  taken  in  the  executing  Court  at  the  earliest possible opportunity, and unless there has been a consequent failure of justice.”

Sub-section (1)  of  Section 21 provides that  before  raising an objection to territorial

jurisdiction before an appellate or revisional court, two conditions precedent must be

fulfiled:

i) The objection must be taken in the court of first instance at the earliest possible

opportunity; and ii) There has been a consequent failure of justice.

This provision which the legislature has designedly adopted would make it abundantly

clear that an objection to the want of territorial jurisdiction does not travel to the root of

or to the inherent lack of jurisdiction of a civil court to entertain the suit.   Hence, it has

to be raised before the court of first instance at the earliest opportunity, and in all cases

where issues are settled, on or before such settlement.   Moreover, it is only where

there is a consequent failure of justice that an objection as to the place of suing can be

entertained.  Both these conditions have to be satisfied.

10 The learned counsel appearing on behalf of the respondents has submitted that

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the objection as to the lack of territorial jurisdiction was raised in the written statement

before the trial court.   But evidently the suit was decreed ex-parte after the respondents

failed to participate in the proceedings.  The provisions of Section 21(1) contain a clear

legislative mandate that  an objection of  this  nature has to be raised at  the earliest

possible opportunity, before issues are settled.   Moreover, no such objection can be

allowed to be raised even by an appellate or revisional jurisdiction, unless both sets of

conditions are fulfilled.

11 Learned  counsel  appearing  on  behalf  of  the  respondent  has  placed  a

considerable degree of reliance on the judgment of four Judges of this Court in Kiran

Singh (supra).  In that case, there was a dispute in regard to the valuation of the suit.

The issue would ultimately determine the forum to which the appeal from the judgment

of the trial court would lie.  If the valuation of the suit as set out in the plaint was to be

accepted, the appeal would lie to the district court.  On the other hand, if the valuation

as determined by the High Court was to be accepted, the appeal would lie before the

High Court and not the District Court. It was in this background that this Court held that

as a fundamental principle, a decree passed by a court without jurisdiction is a nullity

and that its validity could be set up wherever it is sought to be enforced or relied upon,

even at the stage of execution in a collateral proceeding. Moreover, it was held that a

defect of jurisdiction, whether 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 the decree

and cannot be cured even by the consent of the parties.     

The Court then proceeded to examine the effect of Section 11 of the Suit Valuation Act

1887 on this fundamental principle. This Court held thus:

“7. Section 11 enacts that notwithstanding anything in Section 578 of the Code of Civil Procedure, an objection that a court which had no jurisdiction over a suit or appeal had exercised

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it by reason of overvaluation or undervaluation, should not be entertained by an appellate court, except as provided in the section...a decree passed by a court, which would have had no jurisdiction to hear a suit or appeal but for overvaluation or undervaluation, is not to be treated as, what it would be but for  the  section,  null  and  void,  and  that  an  objection  to jurisdiction based on overvaluation or undervaluation, should be  dealt  with  under  that  section  and  not  otherwise.  The reference  to  Section  578,  now  Section  99  CPC,  in  the opening words of the section is significant. That section, while providing that no decree shall be reversed or varied in appeal on account of the defects mentioned therein when they do not affect  the  merits  of  the  case,  excepts  from  its  operation defects  of  jurisdiction.  Section  99  therefore  gives  no protection  to  decrees  passed  on  merits,  when  the  courts which  passed  them  lacked  jurisdiction  as  a  result  of overvaluation or undervaluation. It is with a view to avoid this result that Section 11 was enacted. It provides that objections to  the  jurisdiction  of  a  court  based  on  overvaluation  or undervaluation shall not be entertained by an appellate court except  in  the  manner  and  to  the  extent  mentioned  in  the section. It is a self-contained provision complete in itself, and no  objection  to  jurisdiction  based  on  overvaluation  or undervaluation can be raised otherwise than in accordance with  it.  With  reference  to  objections  relating  to  territorial jurisdiction,  Section 21 of  the Civil  Procedure Code enacts that no objection to the place of suing should be allowed by an  appellate  or  Revisional  Court,  unless  there  was  a consequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference  to  pecuniary  jurisdiction.  The  policy  underlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered,  it  should  not  be  liable  to  be  reversed purely  on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits.” (Emphasis supplied)

12 Dealing with the question of whether a decree passed on appeal by a court which

had jurisdiction to entertain it only by reason of undervaluation or overvaluation can be

set  aside  on  the  ground that  on  a  true  valuation  that  court  was  not  competent  to

entertain the appeal, the Court held that a mere change of forum is not ‘prejudice’ within

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Section 11 of the Suits Valuation Act. This Court held thus:

“12. …it is impossible on the language of the section to come to a different conclusion. If the fact of an appeal being heard by a Subordinate Court  or  District  Court  where the appeal would have lain to the High Court if the correct valuation had been given is  itself  a  matter  of  prejudice,  then the  decree passed by the Subordinate Court or the District Court must, without more, be liable to be set aside, and the words “unless the overvaluation or undervaluation thereof has prejudicially affected the disposal of the suit or appeal on its merits” would become wholly useless. These words clearly show that the decrees passed in such cases are liable to be interfered with in  an  appellate  court,  not  in  all  cases and as  a  matter  of course,  but  only  if  prejudice  such  as  is  mentioned  in  the section results. And the prejudice envisaged by that section therefore  must  be  something  other  than  the  appeal  being heard in a different forum. A contrary conclusion will lead to the surprising result  that  the section was enacted with  the object  of  curing defects  of  jurisdiction arising by reason of overvaluation or undervaluation, 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.”  

(Emphasis supplied)

The Court disallowed the objection to jurisdiction on the ground that no objection was

raised at the first instance and that the party filing the suit was precluded from raising

an objection to jurisdiction of that court at the appellate stage. This Court concluded

thus:

“16.   If the law were that the decree of a court which would have had no jurisdiction over the suit or appeal but for the overvaluation or undervaluation should be treated as a nullity, then of  course, they would not  be stopped from setting up want  of  jurisdiction in  the court  by  the fact  of  their  having themselves  invoked  it.  That,  however,  is  not  the  position under Section 11 of the Suits Valuation Act.”

Thus, where the defect in jurisdiction is of kind which falls within Section 21 of the CPC

or Section 11 of the Suits Valuation Act 1887, an objection to jurisdiction cannot be

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raised except in the manner and subject to the conditions mentioned thereunder. Far

from helping the case of the respondent, the judgment in  Kiran Singh (supra) holds

that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an

objection to jurisdiction over the subject matter. An objection to the want of territorial

jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil

court to entertain the suit.

13 In Hiralal v Kalinath8, a person filed a suit on the original side of the High Court

of Judicature at Bombay for recovering commission due to him. The matter was referred

to arbitration and it resulted in an award in favour of the Plaintiff. A decree was passed

in terms of the award and was eventually incorporated in a decree of the High Court. In

execution proceedings, the judgment-debtor resisted it on the ground that no part of the

cause of action had arisen in Bombay, and therefore, the High Court had no jurisdiction

to  try  the  cause  and  that  all  proceedings  following  thereon  where  wholly  without

jurisdiction and thus a nullity. Rejecting this contention, a four judge Bench of this Court

held thus:

“The  objection  to  its  [Bombay  High  Court]  territorial jurisdiction is one which does not go to the competence of the court and can, therefore, be waived. In the instant case, when the plaintiff obtained the leave of the Bombay High Court on the original side, under clause 12 of the Letters Patent, the correctness  of  the  procedure  or  of  the  order  granting  the leave could be questioned by the defendant or the objection could be waived by him. When he agreed to refer the matter to  arbitration  through  court,  he  would  be  deemed to  have waived his objection to the territorial jurisdiction of the court, raised by him in his written statement. 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 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

8 AIR 1962 SC 199

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and this principle has been given a statutory recognition by enactments like Section 21 of the Code of Civil Procedure.” (Emphasis supplied)

In Harshad Chiman Lal Modi v DLF Universal Ltd.9, this Court held that an objection

to  territorial  and  pecuniary  jurisdiction  has  to  be  taken  at  the  earliest  possible

opportunity.   If it  is not raised at the earliest, it  cannot be allowed to be taken at a

subsequent stage.   This Court held thus:  

“30. The jurisdiction of a court may be classified into several categories.   The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the  subject-matter.   So  far  as  territorial  and  pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at  the earliest  possible opportunity  and in any case  at  or  before  settlement  of  issues.    The  law  is  well settled on the point that if such objection is not taken at the earliest,  it  cannot  be allowed to  be taken at  a  subsequent stage.   Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing.   Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter.   An order passed by a court having no jurisdiction is a nullity.”

In Hasham Abbas Sayyad v Usman Abbas Sayyad10, a two judge Bench of this Court

held thus:  

“24. We may, however, hasten to add that a distinction must be made between a decree passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21 of the Code of Civil Procedure, and a decree passed by a court having no jurisdiction in regard to the subject-matter of the suit. Whereas in the former case, the appellate court may not interfere with the decree unless prejudice is shown, ordinarily the second category of the cases would be interfered with.”

Similarly, in Mantoo Sarkar v Oriental Insurance Co. Ltd11, a two judge Bench of this

Court held thus:  

9(2005) 7 SCC 791 10 (2007) 2 SCC 355 11 (2009) 2 SCC 244

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“20. A  distinction,  however,  must  be  made  between  a jurisdiction with regard to the subject-matter of the suit and that  of  territorial  and pecuniary jurisdiction.  Whereas in the case falling within the former category the judgment would be a nullity, in the latter it would not be. It is not a case where the Tribunal had no jurisdiction in relation to the subject-matter of claim…in  our  opinion,  the  court  should  not  have,  in  the absence of any finding of sufferance of any prejudice on the part of the first respondent, entertained the appeal.”

14 The objection which was raised in execution in the present case did not relate to

the subject matter of the suit. It was an objection to territorial jurisdiction which does not

travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the

suit. An executing court cannot go behind the decree and must execute the decree as it

stands. In Vasudev Dhanjibhai Modi v Rajabhai Abdul Rehman12, the Petitioner filed

a suit in the Court of Small Causes, Ahmedabad for ejecting the Defendant-tenant. The

suit was eventually decreed in his favour by this Court. During execution proceedings,

the  defendant-tenant  raised  an  objection  that  the  Court  of  Small  Causes  had  no

jurisdiction to entertain the suit and its decree was a nullity. The court executing the

decree and the Court of Small Causes rejected the contention. The High Court reversed

the order of the Court of Small Causes and dismissed the petition for execution. On

appeal to this Court, a three judge Bench of this Court, reversed the judgment of the

High Court and held thus:  

“6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree  according  to  its  tenor,  and  cannot  entertain  any objection that  the decree was incorrect  in  law or  on facts. Until it is set aside by an appropriate proceeding in appeal or revision,  a  decree  even  if  it  be  erroneous  is  still  binding between the parties.

8. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the

12 (1970) 1 SCC 670

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jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether  the  Court  which  had  passed  the  decree  had  no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.”

15 In this background, we are of the view that the High Court was manifestly in error

in coming to the conclusion that it was within the jurisdiction of the executing court to

decide  whether  the  decree  in  the  suit  for  partition  was  passed  in  the  absence  of

territorial jurisdiction.

16 The respondent  has filed a first  appeal (First  Appeal  No. 43/2015) where the

issue of jurisdiction has been raised.  We must clarify that the findings in the present

judgment shall not affect the rights and contentions of the parties in the first appeal.

17 The High Court has manifestly acted in excess of jurisdiction in reversing the

judgment of the executing court which had correctly declined to entertain the objection

to the execution of the decree on the ground of a want of territorial jurisdiction on the

part of the court which passed the decree.

18 We have also not found merit in the contention that the impugned order of the

High Court, being an order of remand, is in the nature of an interlocutory order which

does not brook any interference. By the impugned order, the High Court has directed

the executing court to entertain an objection to the validity of the decree for want of

territorial  jurisdiction.  Such  an  objection  would  not  lie  before  the  executing  court.

Moreover,  the objection that  the property  at  Ranchi  did  not  belong to  the common

ancestor is a matter of merits, which if at all, has to be raised before the appropriate

court in the first appeal.

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19 For  the  above  reasons,  we  allow  the  appeal  and  set  aside  the  impugned

judgment and order of the High Court. The executing court shall conclude the execution

proceedings expeditiously.   There shall be no order as to costs.

 ….…….....………..….......………………........J.                                                                            [DR DHANANJAYA Y CHANDRACHUD]

 .….…………....…........……………….…........J.

                                             [HEMANT GUPTA]

New Delhi, January 7, 2019