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TMI Blog1942 (11) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... he suit. There were numerous other defendants in possession of portions of the mortgaged properties under alienations effected subsequent to the mortgage. The predecessor-in-title of the appellant was the fourth defendant. By the preliminary decree passed by the Subordinate Judge of Bapatla the fourth defendant was exonerated from the decree. The plaintiff preferred an appeal to this Court in A.S. No. 405 of 1925. On 8th May, 1934, this Court (Ramesam and Curgenven, JJ.) modified the decree of the lower Court in certain particulars. Clause 3 of the appellate decree which is the only clause relevant for the present purpose is as follows: That the decree of the lower Court in so far as it relates to defendants 4, 7, 29, 38 and 36 as to Ex. XIII, be, and hereby is, set aside and the properties forming items 1, 13, 12, 9 and 6 mentioned in the schedule attached to the decree of the lower Court, with which the said defendants 4, 7, 29, 38 and 36 as to Ex. XIII are severally concerned be sold only after paying for the improvements effected by the said defendants on the sites. The result was that the appellant's predecessor-in-title, namely, the fourth defendant and the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n petitions, insolvency petitions and miscellaneous petitions relating to the transferred jurisdiction were made and the concerned proceedings were transferred to the Tenali Subordinate Judge's Court by order of the District Judge. But due possibly to the fact that O.S. No. 63 of 1922 had already been disposed of by the passing of both the preliminary and the final decrees therein and the fact that no execution proceedings had been instituted, the lists aforesaid did not include this suit or any proceedings connected therewith. The position therefore was that the Tenali Subordinate Judge's Court which has passed the order now under appeal acquired territorial jurisdiction over the mortgaged properties, but the transfer of business made to it from the Bapatla Subordinate Judge's Court left out the suit with which we are concerned. On this circumstance is based the second contention of the appellant that the Tenali Subordinate Judge's Court has no jurisdiction to execute the decree as ruled in Ramier v. Muthukrishna Ayyar (1932)6 2 MLJ 687 . ' 4. Prima facie both the contentions of the appellant appear to be sound and supported by authority. It is difficult to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceed against the appellant and certain other judgment-debtors for the realisation of a sum of ₹ 14,886-13-11 and costs by sale of their properties as per the directions contained in the decree of the High Court in A.S. No. 405 of 1925. The appellant was made the third respondent in place of his predecessor-in-title,. namely, the fourth defendant. On 14th July, 1937, the Court directed the issue of notice under Order 21, Rule 22 to the appellant amongst others. Though he was served, the appellant did not appear and was accordingly declared ex parte. On 6th January, 1939, the Court refused execution against the seventh item of the properties sought to be proceeded against--with this item the appellant has no concern--but as regards the rest directed the decree-holder to file the sale papers on or before 18th January, 1939. On this date time for the filing of the sale papers was extended till 26th January, 1939, when the execution petition was withdrawn and dismissed as not pressed. The order passed on 6th January, 1939, is clearly an order directing execution to proceed on the footing that the decree was one capable of being executed by the Court in which the execution petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of a decree may have been actually barred by time at the date of an application made for its execution, yet, if an order for such execution has been regularly made by a competent Court having jurisdiction to try whether it was barred by time or not, such order, although erroneous, must, if unreversed, be treated as valid. The learned Judges support themselves by these observations in laying down the principle that when an order for execution of a decree is made, the implication is that the appellant has a right to execute the decree; that it is an executable decree, that it is not barred by limitation and that the judgment-debtor is liable to satisfy it. In Ramaswami Reddi v. Rangamannar Iyengar (1914)26MLJ255 , Sankaran Nair and Ayling, JJ., applied the same principle to a case where the decree-holder sought to execute a preliminary decree which had not been made final. When the decree-holder sought to execute it notice of the execution petition went to the judgment-debtors, but the latter did not raise the objection, that the decree, being a preliminary decree was not executable. Thereupon the Court directed the properties to be sold. That order was not set aside an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inakshi Naidu's case. This principle has been applied by the Courts in India in great marry cases of which it is suificient to refer to Gurdeo Singh v. Chandrikah Singh and Chandrikah Singh v. Rashbehary Singh I.L.R.(1907) Cal. 193. Mookerjee, J., after an examination of the Indian and the English authorities on the point elucidated the distinction in matters of jurisdiction in this way: A Court cannot adjudicate upon a subject-matter, which does not fall within its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject-matter is a condition precedent to the acquisition of authority over the parties, and, if a Court has no jurisdiction over the subject-matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal, or its nullity may be established, when it is sought to be relied upon in some other proceeding : See Hawes on Jurisdiction, pages 12-16; Hermann on Estoppel, section no, and Frankel v. Sutterfield (1890) 19 Atlantic Rep. 898 . An entirely different c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction of the Court which passed it, that is to say, the transfer of the decree for execution to another Court is permitted if the Court in which the property directed to be sold or delivered is situated within the territorial jurisdiction of that other Court. We consider that the true effect of Section 39 is to recognise the transferee Court as having inherent jurisdiction, to sell or deliver properties situate within its territorial limits, but only that the jurisdiction is to be invoked by the machinery provided by the section. From this it follows that the absence of an order of transfer is merely an irregularity in the assumption of jurisdiction by the Tenali Sub-Court when proceedings were commenced in it, but that objection not having been taken in the first instance, the judgment-debtor (the appellant ) must be held to have waived it. 11. In this connection an observation in Subramania Aiyar v. Swaminatha Chettiar (1928) 28 L.W. 885. affirmed* by the Full Bench in Ramier v. Muthukrishna Iyer (1932)6 2 MLJ 687 , is worthy of mention. It will be remembered that under Order 21, Rule 5 if the Court to which the decree is to be sent is situate in the same District as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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