Smt. Krishnalata W/O ... vs Shri Anilkumar S/O Shankarrao ...
2006 Latest Caselaw 764 Bom

JUDGMENT

V.G. Palshikar, Acting C.J.

1. Heard Shri Khapre, learned Counsel for the petitioners. The respondent was served with notice before admission, but did not appear. Therefore, fresh notice stating that the petition would be disposed of at the stage of admission was issued, yet none appears for respondent, consequently the respondent is proceeded exparte because of service of notice twice.

2. By the petition the petitioners have challenged the order passed by the Civil Judge, Junior Division, Kamptee, in Regular Darkhast No. 8/2000 on th January, 2002, dismissing the Regular Darkhast on the ground that the decree dated 14.7.1991 passed in R.C.S. No. 638/94 by the 2nd Additional Small Causes Court, Nagpur, was without jurisdiction. This order is impugned in this petition.

3. It is contended by the learned Counsel appearing on behalf of the petitioners that the learned Civil Judge committed error of law and error of jurisdiction in rejecting the Darkhast. The premises that (1) on creation of Kamptee Revenue Taluka, the Small Causes Court at Nagpur cease to have jurisdiction is an illegal presumption and (2) the Executing Court does not have jurisdiction to go behind the decree and therefore, in dismissing the Darkhast on the ground of lack of jurisdiction by the Small Causes Court was exercising jurisdiction not vested in him by law. On both the grounds, therefore, interference under Article 227 is necessary.

4. The petitioners were the landlord of the respondent of the premises in possession of the respondent as tenant. The landlord desire the premises for their own occupation and therefore, commenced proceedings for permission to terminate the tenancy under the C.P. & Berar Rent Control Order, 1949. These proceedings ultimately ended on 18th August, 1994 on permission being granted by the Rent Controller. Following the permission, notice as contemplated by the Transfer of Properties Act was issued. Since it was not complied with, a civil suit for possession and mense profit was filed in the Court of Small Causes at Nagpur, being a Civil Suit No. 638/1994. According to law in force at that time, such suits between the landlord and tenant of a particular peculiar limits were travelled by the Court of Small Causes. The suit was defended by the Defendant. In his written statement, no objection whatsoever was taken to the jurisdiction of the Small Causes Court at Nagpur either because of peculiar limits or because of territorial limits. Such objection as per Section 21 of the Civil Procedure Code is required to be taken in the Court of first instance at the earliest possible opportunity and in no case after issues are settled. Therefore, in law, after decree was passed, objection to the territorial jurisdiction of the Court of Small Causes at Nagpur could not have been legally raised. A perusal of the provisions of Section 21 Clause (2) makes this clear.

5. The suit was ultimately decided and decreed in favour of the plaintiff on nd May 1997 by the Court of Small Causes at Nagpur. Execution proceedings were commended and were transferred to the Civil Judge, Junior Division's Court at Kampttee, which was then established in the year 1998. When the execution proceedings were continued, the judgment debtor filed an application on 3rd March, 2001, taking objection to the maintainability of the execution proceedings in Kamptee Court on the ground that the decree passed by the Court of Small Causes is without jurisdiction, the lack of jurisdiction being territorial in nature. The learned Judge upheld this argument and by his order dated th January, 2002, dismissed the execution proceeding. It is this order which is impugned in this petition on the grounds mentioned above. In my opinion, both the grounds taken by the learned Counsel for the petitioners have to be accepted. Provisions of Section 21, Clause (2) of the Civil Procedure Code are very clear. The objection to the jurisdiction whether it be peculiar in nature or territorial in nature has to be raised at the earliest possible stage. In no case it can be raised after a decree is passed. Consequently it was not open for the defendant/judgment debtor to raise this objection for the first time in execution proceedings pending before the Kamptee Court. Acceptance of that argument by the learned Judge was obvious an error of jurisdiction committed by him. It is not open for the Executing Court to question the correctness of the decree either on law or on the point of jurisdiction.

6. It will be seen that till the Revenue Taluka of Kamptee was created by appropriate notification under the Maharashtra Land Revenue Code in 1981, that area did form part of Nagpur Taluka. After 1981 notification, it became Kamptee Taluka, but the corresponding notification reducing the jurisdiction of the Court of Nagpur Taluka was not issued. The legal consequences of which was that for the purpose of revenue administration, Kamptee became a separate Taluka and for the purpose of judicial administration, it continued to be part of Nagpur Taluka till 1998 when the court was established at Kamptee. On the date when the suit was filed in the year 1994, the jurisdiction vested only in the Court of Small Causes at Nagpur. The Court of Civil Judge, Junior Division at Kamptee having not come into existence till the year 1998.

7. On the factual aspect, it is clear that a decree passed in a suit lodged in the year 1994 cannot be declared as without jurisdiction after establishment of Court in the year 1998. The Civil Judge, Junior Division, Kamptee, therefore, committed jurisdictional error in dismissing the execution proceedings when he does not have jurisdiction to question the correctness of the decree sent to him for execution either because of any illegality or because of lack of jurisdiction. The impugned order is, therefore, liable to be quashed. It is accordingly quashed. The proceedings in Execution Case (Regular Darkhast) No. 8/2000 are sent back to that court for proceeding with the execution in accordance with law as early as possible. Petition thus allowed. There shall be no orders as to cost.