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Judgment
L.P.A. No. 37 of 1927: Wallace, J.: This Letters Patent Appeal is against the decision of Curgenven J., in the matter of an order by him on
C.M.P. No. 3718 of 1926 dated 6th January, 1927 refusing to set aside a Court sale in execution of a mortgage decree against the appellants.
The chief point raised is a question of the jurisdiction of the Sub-Court, Vizagapatam, to sell the property in execution as the property is not within
its territorial jurisdiction. The learned Judge has not dealt with this point, but has merely dismissed the petition for stay.
It is not in dispute that between the date of the preliminary decree in the mortgage suit and the final decree the local area in which this property
Res was taken away from the jurisdiction of the Sub-Court. The question for decision is whether in execution of the final decree the Court which
passed the decree retains jurisdiction to sell the property which has passed out of its jurisdiction. This is a vexed question which has been the
subject of a large number of decisions in this Court and in the Calcutta High Court. It is quite clear from the authorities in these rulings that there are
two main principles of decision which are inherently irreconcilable. The first is that a Court which ordinarily has no power to sell property outside
its local jurisdiction cannot gain that power merely because it has passed the decree against that property While it was within its jurisdiction; that is,
there is no reason why a Court should have greater powers over property at a later stage of a suit than it had at the beginning; and the second
principle is that when a Court has once got jurisdiction over property it cannot lose it. I incline to the former principle in view of the practical
difficulties which will attend the acceptance of the latter. The latter view clearly to my mind implies that the Court which passed the decree never
loses its jurisdiction to execute that decree and the learned vakil for the respondent goes so far as that. I shall consider the effect of that proposition
from two points of view, first, whether the provisions of the Code bear it out, and second, as to the practical difficulties in working.
As to the first point, if the Court which passes the decree never loses its jurisdiction to execute it, then the contingency provided for in Section
37(b), C.P.C., of the Court of first instance losing its jurisdiction to execute a decree could not have been contemplated at all. The phrase ""Court
of first instance"" there is obviously used in the sense of the Court which originally passed the decree--compare the use of the same phrase in
Clause (a)--and was probably used to avoid employing in the definition of the phrase ""Court which passed the decree"" the very phrase which was
being defined and also perhaps to exclude by using that phrase a Court of intermediate appeal. The respondents'' vakil argues that Section 37(b) is
only ancillary to (a) and is brought into operation only when, there has been an appeal and a decision by the appellate Court. I cannot accept that
contention which would amount to saying that the Code has made no provision for the case of the execution of a decree which has not been
appealed against when the Court which originally passed the decree has ceased to exist. The learned vakil refers us to Section 150 to explain this
lacuna. But apart from the improbability of the legislature relegating to a different part of the Code one aspect of the problem which was before
them when Section 37 was drawn up, Section 150 in terms only applies to cases of transfer from a Court and not to cases of a Court ceasing to
exist. I am of opinion therefore that the Code does not authorise the idea that a Court which originally passed a decree never loses its jurisdiction
to execute it. Pressed to its logical conclusion, this argument would mean that the Court to which territorial jurisdiction has been transferred has no
jurisdiction to execute, because the contingency which gives it jurisdiction to execute, namely, the ceasing of jurisdiction in the Court which
originally passed the decree, will never occur. It has never been yet held so far as I know, that the Court to which territorial jurisdiction has been
transferred does not have jurisdiction to execute the decree. A ruling which might be cited to the contrary, viz., Kali Pado Mukerjee v. Dino Hath
Mukerjee ILR (1897) C 315, has been explained in Jahar v. Kamini Debi ILR (1900) C 238 to be not a real case of transfer of territorial
jurisdiction. In most of the reported rulings under this Clause 37(b) it has been taken almost for granted that the usual case to which the phrase ""has
ceased to have jurisdiction to execute it"" applies in the case where between the date of decree and the date of execution application territorial
jurisdiction over the property has passed from the Court of original trial to another Court.
The practical difficulties of holding the proposition are that, by force of Section 37 itself and Section 38, two Courts at least would have
concurrent powers to execute the same decree, and simultaneous executions, simultaneous sales, simultaneous enquiries into claim petitions, and so
on, under the same decree would be going on in different Courts. The difficulties of that procedure far outweigh any hardship in asking the decree-
holder to go for execution and Court sale to a Court which has territorial jurisdiction over the property even when it was not the Court which
originally passed the decree.
The preposition generally laid down in the reported authorities is that a Court has no power to sell property outside its territorial jurisdiction.
Territorial jurisdiction is a condition precedent to the Court selling the property--see Prem Chand Dey v. Mokhoda Debi ILR (1890) C 699.
Subbiah Naicker v. Ramanatham Chettiar ILR (1914) M 462 : 36 MLJ 189, Venkatasami Naik v. Sivanu Mudali, Veerappa Chetti v.
Ramaswami Chetti, Guruswami Naicker v. Mahommadu Rowther, Viswainathan Chatty v. Murugappa Chetty and Maharajah of Jeypore v. Rajah
Lakshmi Narasimha Garu and the same conception underlies the Full Bench decision in Seeni Nadan v. Muthuswami Pillai. See also the Full Bench
decision in Prem Chand v. Mokhoda ILR (1890) C 699 and Begg, Dunlop and Co. v. Jagannath Marwari. Some inroad on that general
proposition has no doubt been made by rulings which have held that, where the Court is executing a mortgage decree for sale, and the property
under mortgage is partly within and partly without its territorial jurisdiction, the Court has power to sell all the property. That has been allowed on
the footing that the execution of a mortgage decree for sale is analogous to a decree for specific performance--see Tincouri Debya v. Shib
Chandra Pal Chowdkury and a ruling of the Patna High Court, reported in Abdul Hadi v. Kabultunnissa 80 IndCas 901 : 6 Pat.LT 71. So far,
however, thai proposition has not been laid down in any ruling by this Court, and no ruling has gone so far as to lay down that when the property in
the mortgage decree lies wholly outside the territorial jurisdiction of the Court, the Court can sell the property in execution of the mortgage decree
for sale, and I am not, as at present advised, prepared to make this further inroad on the general principle. Section 37, however, does not forbid
the view laid down in the Full Bench case in Seeni Nadan v. Muthuswami Pillai that, though the Court which originally passed the decree has no
jurisdiction to execute it because of the transfer of territorial jurisdiction, it has power to entertain an execution application and transmit it to the
Court having territorial jurisdiction to execute it. On this point respondents'' vakil contends, first, that, if that is what the Full Bench decides, the
decision was otiose, because no one doubts that the Court which passed the decree has power to transmit it for execution to the Court having
jurisdiction to execute, and second, that the Full Bench case really implies that the Court which originally passed the decree has not lost its power
to execute it; that is, if it has power to transmit, it must also have the power to execute. As to the first contention, the decision was necessary
because a decision in Subbiah Naicker v. Ramanathan Chettiar had laid down that, if the Court which originally passed the decree has lost
territorial jurisdiction it could not even entertain and transmit an execution application. As to the second contention, while the judgment of the late
Chief Justice may be taken to go so far as the learned vakil wants, those of the other two judges quite clearly do not, and it is noteworthy that
Subbiah Naicker Vs. Ramanathan Chettiar, . was not overruled by the Full Bench. The case Subbiah Naicker Vs. Ramanathan Chettiar, .
therefore, remains good law except in so far as it has been modified by the Full Bench ruling. That is, the net result is that when the territorial
jurisdiction of the Court which passed the decree is taken away between the stage of the decree and execution, it has power to entertain an
execution application for transmission to the Court having territorial jurisdiction but has no power to sell the property. It is to the convenience of
decree-holders, and there is nothing in the Code to prohibit it, that they should be able to apply in execution to the Court where they obtained their
decree, and should not have to hunt about to find out whether or not the territorial jurisdiction has been in the interval taken away from that Court.
The latter Court will know best whether on not it has territorial jurisdiction and, if it has not, will transfer the decree for execution to the Court
having such territorial jurisdiction. The Full Bench view has been taken by a Bench of this Court in Manavikraman v. Ananthanarayana Aiyar and
this is also the ratio decidendi of Jahar v. Kamini Debi ILR (1900) C 238; see also Udit Narain Chaudhuri v. Mathura Prasad ILR (1908) C 974.
I therefore in this case follow the Full Bench view as I understand it to be and as I have set it out above.
The next point urged by the respondents relates to, the application of Section 21, Civil Procedure Code. That the principle of 5. 2). applies also
to execution proceedings has been laid down in several rulings of this Court--see Manavikraman v. Ananthanarayana Aiyar (1923) 46 M L J 250,
Ramani alias Venkatramani and Others Vs. M. Narayanaswami Iyer and Others, and Chokkalinga Pillay Vs. Velayudha Mudaliar and Others, .
The argument here is that, as the transfer of territorial jurisdiction was between the passing of the preliminary decree and the passing of the final
decree, and as the appellant ""made no objection to the passing of the final decree, he has waived his right to object to the jurisdiction. Such a
contention might be upheld if it was a matter of law that the Court which originally passed the decree always has the right to execute it. But I have
held that that is not the law. Waiver of a right to object to jurisdiction before the passing of the final decree will not therefore imply a waiver of the
right to object in execution proceedings to a sale of the property. The appellant is no doubt barred from pleading in execution proceedings that the
final decree was passed without jurisdiction--see Raja Jaga Veera Rama Venkateswar Ettapa Nayakar Avergal, Zamindar of Ettyapuram Vs.
Chidambaram Chetty and Others, ut in my view he is not barred from pleading that the Court has no right to sell in execution property which is not
within its territorial jurisdiction. The view of one of the learned Judges in Rajagopala Pandaratkiar v. Tirupathia Pillai ILR (1925) M 746 : 1925 50
M L J 161. ILR (1887) C 661 has been pressed upon our attention. Now in that case the transfer of territorial jurisdiction was made while the
execution proceeding was pending, and the objection regarding this jurisdiction was not taken in these proceedings at the earliest opportunity.
Hence Section 21 was applied and it was held that the judgment-debtor could not take such objection at a later stage. This is the ground on which
Madhavan Nair, J., disposed of the case. But Venkata subba Rao, J., while giving that ground also as one of the grounds for dismissal of the
appeal, in itself a ""sufficient ground for doing so, went into other grounds, namely, that the rule about territorial jurisdiction does not apply to the
execution of mortgage decrees, and he relied on certain Calcutta cases, without however considering the Full Bench case Prem Chand. v.
Mokhoda, which is also a case of a mortgage decree. So that the observation of the learned Judge that the decisions of the Calcutta High Court on
this point have been uniform does not appear to be just., The cases in Maseyk v. Steel and Co., Gopi Mohan Roy v. Doybaki Nundun Sen and
Tincouri Debya v. Shib Chandra Pal Choudhmy on which he relies are cases in which part of the mortgaged property still remained under the
jurisdiction of the Court which originally passed the decree, and the Kartick Nath Pandey v. Tilukdhari Lall case, on which he also relies was
practically overruled by the Full Bench in Prem Chand Dey v. Mokhoda Debi. I am not therefore prepared to follow the learned Judge in holding
that in all cases of mortgage decrees, not merely cases in which part of the property is still within the jurisdiction of the Court but also cases in
which the property is wholly outside its jurisdiction, the Court which originally passed the decree retains jurisdiction to sell in execution. I am of
opinion that Subbiah Ndicker v. Ramanathan Chettiar, so far as it lays down the opposite of this proposition, has not been overruled by the Full
Bench case Seeni Nadan v. Muthuswami Pillai. I hold therefore that the Lower Court has no jurisdiction to sell the property in execution, and that
the sale cannot therefore go on.
I would set aside the order of the learned Judge and direct that the sale be stayed. The appellant will get his costs in this appeal and C.M.A.
(one Vakil''s fee).
The CM.A. No. 363 of 1926 is also allowed, and the order for sale is cancelled. The E.P. No. 25 of 1925 of the Sub-Court will be regarded
as an application to transmit for execution to the Court having jurisdiction to sell and will be dealt with by that Court as such. No order necessary
on CM.P. No. 300 of 1927.
Jackson, J.
I agree and have nothing to add.