Kasi Viswanatham Chetty Petitioner v. Murugappa Chetty And Another Counter-Petitioners

1. The order before us is one passed under O. 21, R. 90 of the CPC, refusing to set aside a sale in execution. As regards the objections to it argued on the evidence relating to inadequacy of price and substantial loss, we accept the lower Court's observations and concur in its conclusions. The remaining objection that the sale was held without jurisdiction calls for more lengthy discussion. It arises as between appellant, the judgment-debtor and respondent 1, the decree holder and is that the lower Court, the Subordinate Court of Ramnad, had no jurisdiction to sell property, which it is admitted is situated in the territorial jurisdiction of the Subordinate Court of Sivaganga. The decree under execution was passed by the Chief Court of Lower Burma and was transmitted by it for execution to the District Court of Ramnad, that Court transferring it for execution to the lower Court.

2. The objection has been met first by the argument that the lower Court is of unlimited pecuniary jurisdiction, and therefore of competent jurisdiction within the meaning of O. 21, R. 8 of the CPC. The transfer to it by the District Court of the decree for execution was accordingly such as the rule contemplates and conferred on it the jurisdiction necessary to support its proceedings notwithstanding its territorial jurisdiction over the property to be sold was wanting.

3. But this has been justified only by the assumption that the expression “Court of competent jurisdiction” in the rule should be interpreted, as it must be when it occurs in S. 24, without reference to territorial jurisdiction. The assumption is unsustainable, because it is negatived by the object of the last mentioned provision. For the competence of a Court to try a suit does not depend on its possession of any power connected with territorial competence, since it has independently of it machinery for issuing process, obtaining the presence of parties and securing evidence throughout India. It is otherwise as regards O. 21, R. 8 of the CPC and the execution since apart from the special and exceptional procedure by precept, a Court cannot act through its officers except within its territorial jurisdiction.

4. This follows from Section 39(1)(b) and Section 42 of the CPC. S. 38 is no doubt general in its terms. But the reference to “the Court to which the decree is sent” must be read with reference to a sending authorized by law, that is subject to S. 39, and the reference to competence in O. 21, R. 8, must be interpreted in the same way. It may be added that this reference was first made in O. 21, R. 8 of the present Code, the wording of Section 226 of the old CPC, corresponding with it having been modified, and it is therefore useless to refer to the only decisions on the point, those reached under the former law. The conclusion must in the circumstances be against the contention of the decree-holder respondent 1. He has however argued in the alternative that the transfer of the decree to the lower Court by the District Court was or must be presumed to have been to a Court competent when the transfer was made, and that its competence has not been affected by any subsequent transfer to the Sivaganga Court of jurisdiction over the village, where the property sold is situated. The transfer of jurisdiction to the Sivaganga Court took place, we have ascertained from the District Judge, on 15th April 1913. Regarding the date of the transfer of the decree by the District Court there is nothing on the record before us. But if it be presumed that it was before the transfer of jurisdiction and that the transfer of the decree was valid, that cannot avail respondent 1. For the material point is that the sale under consideration was held after 15th April 1915, when the lower Court had no territorial jurisdiction; and it is the law, as laid down in Subbiah Naicker…(Second Counter-Petitioner) v. Ramanathan Chettiar…(Petitioner) .*(1), a decision by which we are bound that pending proceedings are transferred by operation of law on the occurrence of any change in the territorial jurisdiction over the property with which they are concerned. Therefore, if the lower Court was at any time competent to execute the decree in virtue of any transfer to it prior to 15th April 1913, it forfeited its competence to keep the suit property under attachment or to sell it from that date. The decision cited dealt, like the present proceedings, with execution. The only ground of distinction from it suggested, that the notification transferring jurisdiction in question in it may have withdrawn, whilst that in question here did not withdraw, jurisdiction over the transferred area, would require clear support from the terms of the notifications, since such concurrent jurisdiction in the case of Courts of equal grade is rare, if not unprecedented. But such support, we have satisfied ourselves, is in no degree forthcoming. This argument also must therefore, be rejected.

5. As the sale was held without jurisdiction it must be set aside, the appeal being allowed and the lower Court's order being reversed with costs throughout.

S.N/R.K

6. Appeal allowed.