SNEH LATA GOEL versus PUSHPLATA & ORS.

Citation: [2019] 1 S.C.R. 463 · Decided: 07-01-2019 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SNEH LATA GOEL
v.
PUSHPLATA & ORS.
(Civil Appeal No. 116 of 2019)
JANUARY 07, 2019
[DR. D. Y. CHANDRACHUD AND HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908 – ss.21 and 47 – Partition suit
was instituted – Final decree was passed confirming the preliminary
decree – Further, supplementary final decree was also passed –
Appellant filed proceedings for execution of the final decree – First
respondent filed objection u/s.47, CPC contending that the decrees
passed were without jurisdiction and therefore, a nullity – Dismissed
by Executing Court – Challenged by first respondent u/Art. 227 of
the Constitution – High Court held that the Executing Court was in
error in holding that it lacked jurisdiction to entertain the objection
as to the validity of the decree on ground of alleged absence of
territorial jurisdiction – Application raising the objection was
restored to the file of the executing court for disposal – Held:
Objection to the want of territorial jurisdiction does not travel to
the root of or to the inherent lack of jurisdiction of a civil court to
entertain the suit – It has to be raised before the court of first instance
at the earliest opportunity, and in all cases where issues are settled,
on or before such settlement – Moreover, it is only where there is
consequent failure of justice that an objection as to the place of
suing can be entertained – Both these conditions have to be satisfied
u/s.21, CPC – In the present case, the objection which was raised
in execution was an objection to territorial jurisdiction which does
not travel to the root of or to the inherent lack of jurisdiction of a
civil court to entertain the suit – Such an objection would not lie
before the executing court – Executing court cannot go behind the
decree and must execute the decree as it stands – Executing court
correctly declined to entertain the objection to the execution of the
decree on the ground of a want of territorial jurisdiction on the
part of the court which passed the decree – High Court was in
error in holding that it was within the jurisdiction of the executing
court to decide whether the decree in the suit for partition was passed
[2019] 1 S.C.R. 463
463
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SUPREME COURT REPORTS
[2019] 1 S.C.R.
in the absence of territorial jurisdiction – Judgment of the High
Court set aside – Constitution of India – Art.227.
Allowing the appeal, the Court
HELD: 1.1 Sub-section (1) of Section 21 provides that before
raising an objection to territorial jurisdiction before an appellate
or revisional court, two conditions precedent must be fulfiled:
i)The objection must be taken in the court of first instance
at the earliest possible opportunity; and
ii) There has been a consequent failure of justice.
An objection to the want of territorial jurisdiction does not
travel to the root of or to the inherent lack of jurisdiction of a
civil court to entertain the suit. Hence, it has to be raised before
the court of first instance at the earliest opportunity, and in all
cases where issues are settled, on or before such settlement.
Moreover, it is only where there is a consequent failure of justice
that an objection as to the place of suing can be entertained.  Both
these conditions have to be satisfied.  [Para 9][469-F-H; 470-A-B]
1.2 The objection which was raised in execution in the
present case did not relate to the subject matter of the suit. It
was an objection to territorial jurisdiction which does not travel
to the root of or to the inherent lack of jurisdiction of a civil court
to entertain the suit. Such an objection would not lie before the
executing court. The High Court was manifestly in error in coming
to the conclusion that it was within the jurisdiction of the executing
court to decide whether the decree in the suit for partition was
passed in the absence of territorial jurisdiction. The High Court
has manifestly acted in excess of jurisdiction in reversing the
judgment of the executing court which had correctly declined to
entertain the objection to the execution of the decree on the
ground of a want of territorial jurisdiction on the part of the court
which passed the decree. [Para 14, 15 and 17][475-C; 476-A-B,
C-D]
Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005)
7 SCC 791 : [2005] 3 Suppl. SCR 495; Hiralal v.
Kalinath AIR 1962 SC 199 : [1962] SCR 747; Hasham
Abbas Sayyad v. Usman Abbas Sayyad (2007) 2 SCC
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355 : [2006] 10 Suppl. SCR 740; Mantoo Sarkar v.
Oriental Ins

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