Report No. 27

Section 21A (New)

This is intended to put at rest the conflict of decisions as to whether defect of jurisdiction can be made a ground of attack by a new suit. One view is, that if the defendant does not object to jurisdiction and a decree is passed against him he cannot, in a subsequent suit, move for setting aside the decree for want of jurisdiction.1-2-3-4-5 But, according to the Allahabad High Court, it is not legitimate to extend the bar of section 21 beyond the limits provided by the section, and in such a case the plaintiff is entitled to maintain an independent suit for the avoidance of the decree6. In a Calcutta case,7-8 a landlord filed a suit for rent and ejectment under section 66 of the Bengal Tenancy Act and obtained a decree, in execution of which the tenure was sold and purchased by himself. The land was situated in the jurisdiction of another court, but the defendant had raised no objection.

When the landlord went to take possession, the tenant defendant filed a suit for a declaration that the decree had been passed and the sale was held without jurisdiction. It was contended for the landlord that the sale was validated by section 21, but this contention was overruled. Mookerjee, J., said 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 jurisdiction of the court. This exception cannot obviously be so interpreted as to have a wider application than what is justified by its terms. It is impossible for us to hold that section 21 debars the defendants from questioning the validity of the execution sale which is the root of the title of the plaintiff". In the view taken by the learned Judge the decree was valid in view of the relevant provisions of the Bengal Tenancy Act, but the execution sale was a nullity.

It is considered that the view taken by the Madras and Lahore High Courts is the correct one. If the defendant waives the objection, the matter should be regarded as closed. Hence the amendment. This is in conformity with the view expressed by Mulla9.

As to res judicata and jurisdiction, the under-mentioned decisions may be seen10-11-12-13.

1. Nageswara v. Ganesa, AIR 1942 Mad 675; (Case of adjudication order), Chokkalinga v. Velayudha, AIR 1925 Mad 117.

2. Parshotam Das v. Radha Kishan, AIR 1929 Lah 449 (Execution).

3. See also Firm Jagniram v. Ganpati Damaji, AIR 1941 Nag 36 (FB).

4. See also Maqsood Ali v. Hunter, AIR 1943 Oudh 338 (342).

5. On the general question of challenge on the ground of jurisdiction, see Karashiddaya v. Shree Gajanan Bank, AIR 1943 Born 288.

6. Raghubir v. Horilal, (1931) ILR 53 All 560: AIR 1931 All 454.

7. Kunja v. Manindra, AIR 1923 Cal 619.

8. As to position under the Letters Patent, see AIR 1960 Cal 33.

9. Mulla CPC, (1953), p. 133.

10. Newton v. Official Trustee, AIR 1954 Cal 506.

11. Bank of Chettinad v. Chettiyar, AIR 1936 Rang 87 (SB).

12. Firm Annu Mal v. Brij Lal, AIR 1947 Mad 410.

13. Rajaram v. Central Bank, AIR 1926 Born 481 (Fawcett J.).