Report No. 27
Section 21 and execution
1. The question has been considered whether to avoid delay in execution, objections as to the territorial competence of a court executing a decree should not be allowed and that to achieve this purpose, a provision on the subject should be inserted.
2. At present, section 21 of the Civil Procedure Code deals only with objections as to place of suing.
3. The section does not apply in terms to execution proceedings, that is to say, where an attack is sought to be made on the validity of the execution proceedings themselves on the ground that they have been held in the wrong court.
4. The principle on which section 21 is based-namely, that no objection as to local jurisdiction of a court can be made1-has, however, been held to apply in relation to execution proceedings in a number of decisions. Thus, it has been held,2 that the defect of jurisdiction arising by reason of the transfer of an area pending execution proceedings does not vitiate those proceedings. It has also been held,3 that after sale an application to set aside the sale on the ground that the court had lost territorial jurisdiction, could not be made, and that such objection, if not taken at the earliest opportunity, cannot be raised subsequently.
5. Generally as to object of section 21, see the observations of the Supreme Court.4-5 "The policy underlying sections 21 and 99, C.P.C. 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 has resulted in failure of justice, and the policy of the legislature has been to treat objection 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.".
6. In a Madras case6 relating to a mortgage decree, the absence of a formal transfer order under section 39 was regarded as an irregularity in the assumption of jurisdiction, which could be waived. In that case, the order passed in execution proceedings after notice under Order 21, rule 22, was also held to operate as res judicata.
7. A few decisions apparently to the contrary may be noted. In one Madras case,7 there are observations to the effect that section 21, which refers to objection as to the place of suing, will not apply to execution petition. (Many of the previous cases were not, however, considered). In that case, while an execution petition was pending for attachment and sale of immovable property in Court A, and after the order of attachment, the property was removed to the jurisdiction of Court B. An order for the sale of the property by Court A was held not to bind another execution creditor. This case can, however, be distinguished, as the person attacking the execution was not the judgment-debtor.
To the same effect is an earlier Madras decision8, which was also a case of a rival auction purchaser. Greater difficulty is, however, caused by a Calcutta case,9 where the sale by a court of property outside its jurisdiction was held to be void, and section 21 was held not to apply in execution proceedings. It was stated, that section 21 is an exception to the well-established rule that where the court has no inherent jurisdiction over the subject-matter of the suit, its decree is a nullity, even though the parties may have consented to the jurisdiction of the court. This exception cannot, it was observed, obviously be interpreted as to have a wider application than what is justified by its terms. It was pointed out, that the only case in which a court can in execution sell immovable property beyond the local limits of its jurisdiction was under Order XXI, rule 3, and in any other case such a sale would be a nullity, because if a court has no jurisdiction, its judgment is void.
8. The principle of section 21 has been applied to first appeals10 and to applications under Order IX, rule 1311.
9. We are not here concerned with another aspect of the matter, namely, whether the territorial jurisdiction of the trial Court can be challenged in execution. The answer to this would, ordinarily, be "no".12-13-14-15
10. It may be noted that under section 21, before the proceedings can be set aside, both the conditions must be fulfilled, namely, objection at the earliest stage and failure of justice16-17.
11. It is considered that no express provision is necessary, and that in most cases, courts will apply the principle of section 21 to execution also.
1. Cf. Hira Lal v. Kalinath, AIR 1962 SC 199 (201).
2. Rajagopala v. Tirupathia Pilial, AIR 1926 Mad 421 (422) (DB).
3. Ayisa v. Nagaratna, AIR 1934 Mad 573 (575) (DB).
4. Kiran Singh v. Chaman Paswan, (1955) 1 SCR 117: AIR 195451.. 340 (342), para. 7 (section 11, Suits Valuation Act).
5. AIR 1956 Mad 593 (594).
6. Balakrishnayya v. Linga Rao, ILR 1943 Mad 804: AIR Mad 449 (451).
7. Srimanthu v. Venkatappayya, AIR (1948), Mad 18: AIR 1947 Mad 347 (349, 352), Paras. 12 and 24 (FB).
8. Veerappa v. Ramaswami, AIR 1920 Mad 505 (508).
9. Kunja Mohan v. Mahindra Chandra, AIR 1923 Cal 619 (621-622). (Asutosh Mukerjee and Chotnner JD. (Sale of tenancy rights in execution of a decree for rent, held to be void, in a suit brought by decree-holder auction purchaser to evict the tenant).
10. Makhanlal v. Pancham, AIR 1933 Nag 318.
11. Dwarka Das v. Pyare Lal, ILR 52 All 947: AIR 1930 All 873 (874) (Sulaiman J.).
12. Anand Rao v. Kishan Das, AIR 1954 Hyd 190 (FB) (Reviews case-law).
13. Ishwar v. Naipal, AIR 1956 Pat 280.
14. Zamindar of Ettyapuram v. Chitambaram, ILR 43 Mad 675: AIR 1920 Mad 1019 (F.B.).
15. In Gora Chand v. Prafulla Kumar, AIR 1925 Cal 907 (909) (Full Bench of 5 Judges) there are observations that the executing court can take into account questions of jurisdiction-whether pecuniary or territorial or in respect of the judgment-debtor's person. But the actual case was not one of territorial jurisdiction.
16. Hrishikesh v. Khantamam, AIR 1959 Cal 257.
17. Kishori Lal v. Firm Gajja Ram, AIR 1951 Punj 375.