JUDGMENT
Ramesam, J.
1. The facts of this appeal may be stated as follows: One Swaminatha Chettiar brought a suit on the foot of a simple mortgage in O.S. No. 33 of 1921, on the file of the Subordinate Judge’s Court of Negapatam and obtained a decree for sale. The properties directed to be sold consisted of items in three schedules. Those in A and C schedules are situated in Pattukottai Taluq which was then with in the jurisdiction of the Subordinate Court of Tanjore. Those in schedule B are situated in the Mannargudi Taluq which was then within the jurisdiction of the Subordinate Court of Negapatam. As some of the properties were within the jurisdiction of the Subordinate Court of Negapatam the suit was rightly instituted there. While the suit was pending a Notification, dated September…1921, was issued by which the Districts of Tanjore was divided into two Districts-East Tanjore and West Tanjore. The jurisdictions of the Subordinate Courts were re-arranged and under this re arrangement the Mannargudi Taluq also came within the jurisdiction of the Subordinate Court of Tanjore. Thus as a result of the Notification, all the properties were within the jurisdiction, of the Subordinate Court of Tanjore and none within that of the Sub-Court of Negapatam. In spite of this, on the principle that a Court where a suit was originally rightly instituted continues to have jurisdiction over the suit even if the place where the cause of action arises ceases to be situate within its jurisdiction, the Sub-Court of Negapatam tried the suit and passed a preliminary decree in November, 1922. In the year 1923, there was a further Notification according to which Pattukottai Taluq was removed from the jurisdiction of the Sub-Court of Tanjore and was assigned to that of the District Court of East Tanjore, but Mannargudi continued to be within the jurisdiction of the Sub-Court of Tanjore. On the 6th February, 1924, a final decree was passed by the Sub-Court of Negapatam. The validity of the decree is not questioned before us, nor could it be questioned. The execution petition out of which the present appeal arises is E.P. No. 154 of 1926 filed in the Sub-Court of Tanjore by the Official Receiver of Tanjore representing the estate of Swaminatha Chetty who became an insolvent. Notices were ordered upon this petition. A notice dated the 14th August, 1926, issued to the 6th defendant was affixed to the outer-door and another notice dated 5th September, 1926, for the same defendant was received by his son. The 6th defendant did not appear when the petition came on for orders. On the 3rd December, 1926, the petitioner’s Vakil stated that the 9th defendant was dead and it was not known whether he left any legal representatives and hence his name might be removed from the record. On the 13th December, the Court ordered the properties to be sold and fixed the sale for the 31st January. Meanwhile, on the 2nd January, one Nagammal, alleging that the 9th defendant left a legal representative and that she was his guardian filed E.A. No. 60 of 1927, praying for the dismissal of the execution petition on the ground that the proceedings are void or, in the alternative that the fifth item in the first lot of schedule A, which belonged to the 9th defendant should be sold last. On the same day the 8th defendant filed E.A. No. 61 with a similar prayer, the second part of the prayer relating to the third item. On the 8th January, the petitioner in E.P. No. 154 filed E.A. No. 72 of 1927 praying for bringing the legal representatives of the 9th, defendant on record and E.A. No. 73 of 1927 for appointing Nagammal as his guardian. The 6th defendant then filed E.A. No. 102 of 1927, praying for leave to file his objections to E.P. No. 154 of 1926. On the 31st January, 1927, the properties in the C schedule were sold but the sale of the properties in schedules A and B was continued from day to day because of the pendency of the above said petitions. Finally on the 14th February, the Subordinate Judge passed an order referring to tie various matters pending consideration and stopping the sale observing thus
2. “All these must be investigated and settled before the sale proceedings can start again”. He then heard arguments on the various objections mentioned above, passed an order on E.A. Nos. 72 and 73 as prayed for and overruled the objections in E.A. Nos. 60, 61 and 102. The present appeal is against this order.
3. The point raised before us by the 6th defendant whose objections are contained in E.A. No. 102 is that the execution of a decree of the Negapatam Sub-Court cannot be ordered by the Sub-Court of Tanjore on a petition filed before it and that it can only be ordered if the execution is transferred by the Sub-Court of Negapatam.
4. We start with the position that on the date of the filing of the execution petition, none of the properties was situated with in the jurisdiction of the Sub-Court of Negapatam. Some were situated within the jurisdiction of the Sub-Court of Tanjore and others within the original jurisdiction of the District Court of Tanjore. The first question that arises is whether an original petition for execution can be filed before the Sub-Court of Tanjore. Section 38 of the Code of Civil Procedure says that “a decree may be executed by the Court which passed it or by the Court to which it is sent for execution”. The Sub-Court, Tanjore, is not a Court to which it is sent for execution. The question, therefore, is, is it a Court which passed it? The expression “Court which passed the decree” is defined in Section 37. The Sub-Court of Tanjore may be the Court which passed the decree under Section 37(b) only if the Court of first instance ceased to exist or to have jurisdiction to execute it.
5. Now, the Sub-Court of Negapatam has not ceased to exist. The only question, therefore, is whether it has lost jurisdiction to execute it. On this last point, viz., whether the Sub-Court of Negapatam has lost jurisdiction to execute its decree simply because all the properties have ceased to be within its jurisdiction after the filing of the suit, it is unnecessary to refer in detail to decisions prior to the Full Bench decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63 (F.B.). It was held in Latchman Pundeh v. Maddan Mohun Shye 6 C. 513 : 7 C.L.R. 521 : 5 Ind. Jur. 414 that the Court which tried the suit and passed the decree could still execute the decree though it had lost its territorial jurisdiction; but a different conclusion was arrived at in Prem Chand Dey v. Mokhoda Debi 17 C. 699. In spite of this it was assumed in Jahar v. Kamini Debi 28 C. 238 : 5 C.W.N. 150 that the first Court could execute the decree though the point was not necessary for the decision. In Panduranga Mudaliar v. Vythilinga Reddi 30 M. 537 : 2 M.L.T. 466 : 17 M.L.J. 417 this Court also took the same view, but dissented from the Calcutta decisions in holding that the Court which tried the suit and passed the decree was the only Court competent to execute the decree or to transfer it for execution. So far the decisions are under the Code of 1882. Under the Code of 1908, it was observed in Begg Dunlop & Co. v. Jagannath 11 Ind. Cas. 417 : 39 M. 104 : 14 C.L.J. 223 : 16 C.W.N. 402 that mortgage decrees are an exception to the rule in Prem Chand Dey v. Mokhoda Debi 17 C. 699. For the first time under the Code of 1903 it was held in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 by Alying and Sadasiva Aiyar, JJ., that the Court which tried the suit and passed the decree had no jurisdiction to entertain an application for execution or to execute it, if it had lost its territorial jurisdiction after the institution of the suit and the only Court which can execute the decree is the new Court which acquired territorial jurisdiction over the area. In Venkata swami Naik v. Sevanu Mudali 51 Ind. Cas. 102 : 42 M. 461 : 36 M.L.J. 199 : 10 L.W. 370 Ayling and Krishnan, JJ., held that the first Court had not lost its jurisdiction to entertain an application to execute it or to transfer it and they relied on Section 37. Obviously they agreed with the earlier Madras decision in Panduranga, Mudaliar v. Vythilinga Reddi 30 M. 537 : 2 M.L.T. 466 : 17 M.L.J. 417 which was cited before them but not expressly referred to in the judgment. This decision is certainly inconsistent with the decision in Subbiah Naicker v. Rama-nathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251. In this state of authorities the matter came up before a Full Bench in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63 (F.B.) and it was there held that the Court which tried the suit and passed the decree had not lost its jurisdiction to execute the decree even though it had lost territorial jurisdiction over the property. Wallis, C.J. at page 832 page of 42 M.–[Ed.] referred to a draft section in the new Code which was intended to expressly indicate that application might be made to either Court. He then observed that, though this draft section was dropped the result was brought about in another way and he finally held that the first Court is a proper Court for execution. Ayling, J., agreed with him. He made some observations as to the jurisdiction of the Court which acquired territorial jurisdiction. Sadasiva Iyer, J., was inclined to stick to his view in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 but in deference to the other two learned Judges he would not dissent from their conclusion. The result is that we have a decision of the Full Bench holding that the first Court has not lost its jurisdiction to execute the decree. As I have already said, I refused to discuss the decisions above referred to because this Full Bench, decision is binding on me; and I start with the position in the present case that the Sub-Court of Negapatam has not lost its jurisdiction to execute the decree. If so under Section 37(b) of the Code, the Sub-Court of Tanjore is not included in the expression ‘the Court which passed the decree’, Section 37 of the new Code corresponds to Section 649 of the old Code. On this point, namely, whether, by reason of Section 649 of the old Code or Section 37 of the new Code, a Court which acquired territorial jurisdiction may not also be competent to execute the decree, there is great difference of opinion. On the language of the section it seems to me that there is no scope for such difference and, so far as this section is concerned, the second Court cannot become a Court competent to execute the decree. In Latch-man Pundeh v. Madan Mohun Shye 6 C. 513 : 7 C.L.R. 521 : 5 Ind. Jur. 414 the point did not arise for decision. Theory question there was whether the first Court was competent to execute the decree. Field, J., expressed no opinion On the matter but Garth, C.J., observed that the second Court also would be competent to execute the decree without any discussion of Section 649 or giving any further reasons. This decision was followed in Johar v. Kamini Debi 28 C. 238 : 5 C.W.N. 150 but both these decisions were dissented from in Panduranga Mudaliar v. Vythilinga Reddi 30 M. 537 : 2 M.L.T. 466 : 17 M.L.J. 417. The Madras view was followed even under the new Code in Venkataswami Naik v. Sivanu Mudali 51 Ind. Cas. 102 : 42 M. 36 M.L.J. 199 : 10 L.W. 370. In Calcutta, the Calcutta view was followed in Udit Narain v. Mathura Prosad 35 C. 974 : 12 C.W.N. 859. In the Full Bench decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) Wallis, C.J., expressed the opinion that the second Court is also competent to execute the decree by reason of Section 150 of the Code. This expression, I take it, implies that Section 37 of the Code cannot be utilised for saying that the second Court is also a Court competent to execute the decree; at any rate, he expressed no dissent from the decisions in Panduranga Mudaliar v. Vythilinga Reddi 30 M. 537 : 2 M.L.T. 466 : 17 M.L.J. 417 and in Venkataswami Naik v. Sivanu Mudali 51 Ind. Cas. 102 : 42 M. 36 M.L.J. 199 : 10 L.W. 370 which were cited before the Full Bench in argument. I also concur with this view, namely, that Section 37 of the Code cannot be so construed as to lead us to the conclusion that the new Court which acquired territorial jurisdiction is also a Court competent to execute the decree.
6. But this does not solve the problem. The further question arises whether, by reason of Section 150 of the Code, the second Court acquired jurisdiction to execute the decree in addition to the Court which tried the suit. As Section 150 is new in the Code of 1908, and as there was no such section in the Code of 1882, it is futile to refer to decisions under the old Code. Coming to the decisions under the new Code, in Subbiah Naicker v. Ramanathan Ghettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 it was held at page 473 page of 37 M.–[Ed.] that that section implied that the whole business of a Court might be transferred to another Court without any order of transfer being passed by a superior Court either as regards a particular case or as regards all the cases pending in a particular Court by the change of venue made by the Local Government. It seems to me to be a contradiction in terms to say, while holding that a Court where a suit was instituted is competent to try the suit even if the territorial jurisdiction is transferred to another Court, that the business of the former Court, including suits which it is competent to try have been transferred to the latter Court by the mere change of venue by the Local Government and without any order of a superior Court transferring the suit from the former Court to the latter Court. The anomalies of such a view are too patent. Can it be said that immediately after the Notification of the Government changing the jurisdiction the parties can file their witness batta in the second Court and ask the second Court to take up the trial of the suit? If any one of them or both of them can do so, it follows that while one party may take his steps in the former Court the second party may take his steps in the latter Court. Yet if the view expounded in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 is accepted one cannot escape from such an anomalous result. It seems to me that the words of Section 150 refer to cases where certain specified business has been actually transferred by the order of a competent Court and do not apply to any other cases.
7. The reasoning in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 seems also to be the reasoning in the decisions in Srinivasa Rao v. Hanumantha Rao 65 Ind. Cas. 727 : 46 M. 1 : 42 M.L.J. 344 : 15 L.W. 458 : A.I.R. 1922 Mad. 10 : (1922) M.W.N. 349 : 31 M.L.T. 79 and Mouna Guruswamy Naicker v. Muham-madhu Rowther 86 Ind. Cas. 650 46 M. 83 : 16 L.W. 748 : (1922) M.W.N. 743 : 43 M.L.J. 713 : A.I.R. 1923 Mad. 92 though the latter two cases are not cases of execution and perhaps may be distinguised on that ground. The decision in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 has been followed in Parthasaradhi Appa Rao v. Maka Venkata-dri Rao 27 Ind. Cas. 88 : (1914) M.W.N. 896 and Vadivelu Pillai v. Maruda Pillai 26 Ind. Cas. 413. This last case is of no value as it must be regarded as overruled by the decision of the Full Bench in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) for it held that the first Court had lost jurisdiction to execute the decree. The case in Venkatachallam v. Sithayamma 35 Ind. Cas. 296 : 31 M.L.J. 22 though it purports to follow Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 is really not relevant for the point in discussion, for there the decree was passed by a temporary Court which had no territorial jurisdiction at all. The case of Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 is also followed in Doorvas Seshadri Iyer v. Ananthayee 42 Ind. Cas. 671 : 6 L.W. 775 : (1917) M.W.N. 788. The decision in Kasi Viswanathan Chetty v. Murugappa Chetty 43 Ind. Cas. 79 : 33 M.L.J. 750 : 23 M.L.T. 24 (1918) M.W.N. 132 though it refers to Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 is not relevant for our purpose, for in that cage, the Court to which the decree was transferred for execution had lost territorial jurisdiction and was, therefore, held incompetent to execute the decree. In my opinion the decision in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 and all decisions that follow it are based on the view that the first Court had lost its jurisdiction to execute and only the second Court has got jurisdiction to execute, and as this view is inconsistent with the decision of the Full Bench in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) those decisions are of no value.
8. It is true that in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) there are expressions of opinion by all the Judges especially by Wallis, C.J., that the second Court also had jurisdiction to execute the decree in addition to the first Court, but this point did not arise for decision in the case. Wallis, C.J.’s view is based on the fact that there was originally a draft section providing that application might be made to, either Court, Though the draft section was not adopted he thought the same object was achieved by Section 150; but with great deference it is not clear to me that Section 150 was intended to achieve that object at all. There is no indication in Section 150, that the Legislature adopted the view that a change of venue by a Notification of Government had the effect of transferring any pending business and if the section was intended to provide that the new Court shall exercise the powers in respect of such pending business possessed by the first Court in addition to the first Court, it seems to me a straining of the word “business” to imply all this in that section. Wallis, C.J., made ho reference to the words of the section but proceeded on the ground that the Legislature while dropping the draft section, intended to provide for it in this way. Any how, as I have already said any observations on this point in that judgment are obiter. They are inconsistent with the decision in Venkataswami Naik v. Sivanu Mudali 51 Ind. Cas. 102 : 42 M. 36 M.L.J. 199 : 10 L.W. 370 where the Judges found that the second Court had no jurisdiction of any kind and they actually found it necessary to pass an order of transfer of the execution proceedings from the first Court to the second Court. This case was cited before the Full Bench and was not disapproved and simply because there are obiter dicta with reference to Section 150 of the Civil Procedure Code, it cannot be assumed that the Fall Beach intended to overrule this decision and as I agree with the reasoning in Venkataswami Naik v. Sivanu Mudali 51 Ind. Cas. 102 : 42 M. 36 M.L.J. 199 : 10 L.W. 370. I regret I am not able to accept the view embodied in the observations of the Fall Bench in Seeni Nadanv, Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.). It is true that this view was followed in Muthukaruppa Chetty v. Panja Kavundan 73 Ind. Cas. 956 : 45 M.L.J. 210 : (1923) M.W.N. 405 : 18 L.W. 17 : A.I.R. 1924 Mad. 32. In that judgment Old field, J., observed that the lower Court’s view was inconsistent with the decision in Seeni Nadan v. Muthuswami Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.). This is strictly not correct. The actual decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) by which I am bound is that the first Court had jurisdiction. On the question whether the second Court also had jurisdiction the observations in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) are strictly obiter. This error rather detracts from the value of Muthukaruppa Chetty v. Panja Kavundan 73 Ind. Cas. 956 : 45 M.L.J. 210 : (1923) M.W.N. 405 : 18 L.W. 17 : A.I.R. 1924 Mad. 32.
9. A few decisions remain to be noticed. In Chokkalingha Pillai v. Velayudha Mudaliar 87 Ind. Cas. 152 : 47 M.L.J. 448 : A.I.R. 1925 Mad. 117 it was held by Phillips and Venkatasubba Rao, JJ., that even after the change of territorial jurisdiction, the Court before which a suit is instituted is competent to try the suit. I entirely agree with the observations of Phillips, J.; in the early part of his judgment, so much so that I think it was unnecessary for the learned Judges to rely on Section 21 of the Civil Procedure Code at all. This decision with which I agree shows that the construction, of Section 150 which I indicated above is the only proper construction and the other construction adopted in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 is not correct. If the other construction is correct, on the facts of Chokkalingha Pillai v. Velayudha Mudaliar 87 Ind. Cas. 152 : 47 M.L.J. 448 : A.I.R. 1925 Mad. 117 the Mayavaram Court could take up the trial of the suit without any formal transfer by the District Court of Tanjore. This seams to be an anamolous conclusion. In my opinion, Section 150 was intended to provide for transfers of specific cases and cases where territorial jurisdiction is altered were left out to be dealt with by the machinery which existed already in the Code for transferring a decree for execution from one Court to another and as this does not involve any inconvenience, there is no need for straining the language of Section 150 so as to cover such cases. In the present case, for instance, even if we allow the appeal the only inconvenience that the decree-holder has got is to make a formal application for transfer to the Sub-Court of Negapatam and get the decree transferred. In Setrucherla Sivaskanda Rajah v. Rajah of Jeypore 103 Ind. Cas. 245: 50 M. 882 : (1927) M.W. N. 882 : 25 L.W. 671 : 52 M.L.J. 605 : 38 M.L.T. 351 : A.I.R. 1927 Mad 627 there are observations about the power of the first Court to execute its own decree–observations with which I am not able to agree–but otherwise the case has no bearing on the point before me. The decision in Manavikroman v. Ananthanarayana Aiyar 79 Ind. Cas. 806 : 19 L.W. 16 : (1924) M.W.N. 38 : 46 M.L.J 250 : A.I.R. 1924 Mad. 457 is also a case dealing with the powers of the first Court and that is not relevant to the point now before us. The actual decision is correct for there was a prior order which made the matter res judicata. In my opinion, therefore, the second Court has no jurisdiction to entertain an application for execution and assuming that it is the most convenient Court for selling the properties, the only proper way for doing this is to apply before the Negapatam Sub-Court and to obtain an order for transfer. This is the view taken in Venkatasawmi Naik v. Sivanu Mudali 51 Ind. Cas. 102 : 42 M. 36 M.L.J. 199 : 10 L.W. 370. This case has never been overruled or dissented from in any later case; I agree with it and I choose to follow it.
10. The second point that arises in the case is whether assuming that the Sub-Court of Tanjore has no jurisdiction to entertain an application, the appellant is precluded from raising the point by reason of the matter being res judicata. For this purpose there must be a decision by a competent Court. It is true there is an order on the 13th December, after notice to the 8th defendant ordering the gale of the properties and fixing the sale to the 31st January. The question is whether in the circumstances of the case the Subordinate Court of Tanjore can be regarded as a Court competent to make the order so as to make the matter res judicata. If both the Courts are situated in the Same District, seeing that the transfer might be made directly from the first Court to the second Court without the intervention of any superior Court it may be said that the objection by reason of the language of Section 38 or in other words by reason of the irregularity that the decree has not been formally sent to the second Court which has territorial jurisdiction is not fatal to the competency of the second Court to pass the order. In such a case in spite of the irregularity an order directing execution after notice may make the matter res judicata, but whereas in this case the transfer cannot be made directly to the second Court and it should only be made first to the District Court of Tanjore and the District Court may either execute the decree itself or may send it to the Sub Court (vide Order XXI, Rule 5, Civil Procedure Code), the irregularity cannot be overlooked as a mere irregularity.
11. It seems to me that the irregularity amounts to a want of jurisdiction in the Sub Court of Tanjore and to a trespass upon the powers of the superior Court, namely, the District Court of Tanjore. If the regular procedure had been observed the Sub Court of Negapatam would have transferred the decree to the District Court of Tanjore. What would have happened then one does not know. The District Court might have chosen to execute the decree itself and never have sent the decree for execution to the Sub-Court of Tanjore or it might have so sent. But unless it is so sent the Sub-Court cannot execute the decree and an attempt by it to so execute it really amounts to trenching upon the powers of the superior Court and it amounts to a clutching at a jurisdiction which the Sub Court has not and may never have. Under such circumstances the objection is to want of territorial jurisdiction and there can be no res judicata because the Sub-Court of Tanjore is not a competent Court to pass any order and, therefore, the objection may be taken at a later stage.
12. The third point argued by the learned Vakils is that the defect of the proceedings taken in the Sub-Court of Negapatam may not be cured by reason of Section 21, Civil Procedure Code. In the first place Section 21 applies only to suits. The decision in Zemindar of Ettiyapuram v. Chidambaram Chetty 58 Ind. Cas. 871 : 43 M. 675 : (1920) M.W.N. 460 : 28 M.L.T. 75 : 12 L.W. 217 : 39 M.L.J. 203 (F.B.) does not show that it applies to execution proceedings. That decision only says that objections to the validity of a decree based on the want of territorial jurisdiction cannot be taken in execution proceedings and that the decree should be regarded as final. With that view I perfectly agree. But in the present case there is no question as to the validity of the decree. Secondly, the objection to the proceedings taken in the Sub-Court of Tanjore is not based strictly on the want of territorial jurisdiction for the Sub-Court of Tanjore has territorial jurisdiction over the properties, but on the provisions of the Code it is not a Court which can execute the decree. To apply the provisions of Section 21 of the Code to execution proceedings the objection not being to the validity of the decree in execution proceedings is to re-write Section 21, for most of the words in that section are not applicable to execution proceedings. For the words “place of suing” we have to insert “place of execution”. There are no issues in execution proceedings and we will be inserting a new section of the Code if that section is applied to execution proceedings. I, therefore, think that it is not permissible to use Section 21 in execution proceedings apart from the case where it is otherwise res judicata. In the present case, the matter is not as I have already shown a matter of irregularity or want of territorial jurisdiction for it is a case where the jurisdiction of the District Court is being usurped by the Sub-Court. Such a matter cannot be regarded as a mere formal matter. This is the view taken in Debi Dial Sahu v. Moharaj Singh 22 C. 764 and Kunja Behari Singh v. Tarapada Mitra 49 Ind. Cas. 374 : 4 Pat. L.J. 49 see also Ledgard v. Bull 9 A. 191 : 13 I.A. 134 : 4 Sar. P.C.J. 741. There is no decision to the contrary. The result is that Section 21 can be much less invoked than the principle of res judicata. I, therefore, think that the appeal should be allowed and the decree holder be directed to apply to the Sub Court of Negapatam.
13. As the appellant has not taken the objection at the earliest possible stage we allow him no costs here as well as in the lower Court.
Devadoss, J.
14. Original Suit No. 33 of 1921 was tiled in the Negapatam Sub-Court on a mortgage over properties described in three Schedules A, B and C. A and C schedule properties are situate in Pattukottai Taluq and B in Mannargudi Taluq, Tanjore District.
15. At the time of the filing of the suit Mannargudi Taluq was within the jurisdiction of the Negapatam Sub-Court, and Pattukottai Taluq was within the jurisdiction of the Sub-Court, Tanjore. In September, 1921, owing to the bifurcation of the Tanjore District into West and East Tanjore, Mannargudi Taluq was transferred to the jurisdiction of Tanjore Sub-Court. The preliminary decree in the suit was passed in November, 1922, and the final decree on 6th February, 1921, and before the final decree was passed Pattukottai Taluq was transferred to the jurisdiction of the District Court, Tanjore, in 1923. The decree holder became an insolvent and the Official, Receiver, Tanjore, filed an execution application in the Sub-Court, Tanjore, in 1924, for sale of the mortgaged properties and the sale was stopped as there were no bidders and the petition was dismissed. The Official Receiver applied again in 1925 for execution of the decree and notice was served on the judgment-debtors except the 9th defendant who was dead and the Subordinate Judge settled the proclamation of sale and fixed the sale to 31st January, 1927. The 6th defendant who was the purchaser in Court-auction sale of the properties in A schedule appeared in January, 1927, and raised various objections to the sale of the properties and the 9th defendant’s legal representative also appeared and raised, several contentions. The Subordinate Judge overruled the objections of the 6th defendant and ordered sale of the properties. He has preferred this appeal against the order for sale.
16. The properties which are the subject matter of this appeal are only A schedule properties which are within the territorial jurisdiction of the District Court, Tanjore. The contention of Mr. Jayarama Iyer for the appellant is that the proper Court for executing the decree is the Negapatam Sub-Court which passed it and the Tanjore Sub-Court has no jurisdiction to entertain the application for execution. His argument is that under Section 38 of the Code of Civil Procedure, a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution and that Section 37, which defines the expression “Court which passed a decree” does not apply to the Tanjore Sub-Court as the Negapatam Sub Court has neither ceased, to exist nor has it ceased to have jurisdiction to execute the decree. If it is held that the Negapatam Sub Court has not lost jurisdiction to execute the decree in O.S. No. 33 of 1921, Section 37 of the Code of Civil Procedure cannot in terms apply to the present case; for the Negapatam Sub-Court is still in existence. It may be taken as well settled that the Court which passes a decree does not cease to have jurisdiction to execute it by reason of the territory from which the suit arose being removed from its jurisdiction to that of another Court. In Seeni Nadan v. Muthuswami Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) a Full Bench of this Court held that “The Court which passed a decree is a proper Court for execution within the meaning of Clause 5 of Article 182 of the Limitation Act, notwithstanding the fact that the jurisdiction which it had at the time of the decree was taken away from it and assigned to another Court at the time of the presentation of the application for execution.” In Venkataswami Naik v. Sivanu Mudali 51 Ind. Cas. 102 : 42 M. 36 M.L.J. 199 : 10 L.W. 370 a Bench of this Court held that the Court which passed the decree was the proper Court for executing it even though it had no territorial jurisdiction. In Johar v. Kamini Debi 28 C. 238 : 5 C.W.N. 150 it was held that “the provisions of Section 649 of the Code of Civil Procedure are permissive; if, after a Court, has passed a decree, the local jurisdiction in respect of the subject-matter of the suit is transferred by an order of the Local Government to some other Court, the application for execution of the decree may be made either to the Court which passed the decree or to the Court to which the local jurisdiction has been transferred”. In Panduranga Mudaliar v. Vythilinga Reddi 30 M. 537 : 2 M.L.T. 466 : 17 M.L.J. 417 it was held that “a Court did not within the meaning of Section 649 of the Code of Civil Procedure cease to exist or to have jurisdiction to execute the decree on the transfer of territory from its jurisdiction to the jurisdiction of another Court and that the Court which passed the decree was the proper Court to which the decree-holder was bound to apply under Section 223 of the Code of Civil Procedure”. On the other hand it was held in Setrucherla Sivaskanda Rajah v. Rajah of Jeypore 103 Ind. Cas. 245: 50 M. 882 : (1927) M.W.N. 882 : 25 L.W. 671 : 52 M.L.J. 605 : 38 M.L.T. 351 : A.I.R. 1927 Mad. 627 that a Court had no power to order a sale of the properties though it can receive an application for sale and transmit it to the Court having territorial jurisdiction. If the principle of the decision is that the Court which passed a decree has no jurisdiction to execute it by reason of the loss of territory from which the suit arose, then it is opposed to the decision of the Full Bench in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.). Mr. Justice Wallace who delivered the leading judgment in the case, is of opinion that the loss of territorial jurisdiction stands in the way of executing a decree when the property against which execution is sought, is not within such territory and that in order to have jurisdiction to execute a decree against property the property must be within the territorial jurisdiction of the Court in which execution is sought. In the Case of a mortgage-decree a Court has jurisdiction to execute it against properties which are not within its jurisdiction. With great respect to the learned Judges who decided Satrucherla Sivaskanda Rajah v. Rajah of Jeypore 103 Ind. Cas. 245: 50 M. 882 : (1927) M.W.N. 882 : 25 L.W. 671 : 52 M.L.J. 605 : 38 M.L.T. 351 : A.I.R. 1927 Mad. 627 we are unable to agree with the view that the Court which passed a decree ceases to have jurisdiction to execute it by reason of the loss of territory after the passing of the decree. We, therefore, hold that the Court which passes a decree has jurisdiction to execute it even though it loses the territory from which the suit arose. The expression “Court which passed a decree” cannot, therefore, apply to the Tanjore Sub-Court.
17. The next question is when the territorial jurisdiction of one Court is transferred to another, can an application for execution be made to the latter Court without getting the decree sent to it for execution by the former under Section 39 of the Code of Civil Procedure? A decree can be executed either by the Court which passed it or by the Court to which it is sent for execution. The Tanjore Sub-Court is neither the Court which passed the decree nor is it the Court to which the decree was sent for execution, for no application was made to the Negapatam Sub-Court for sending the decree to the Sab-Court, Tanjore, for execution. If the Sub-Court, Tanjore, is not the Court which passed the decree within the meaning of Section 37 of the Code of Civil Procedure does it get jurisdiction under any of the other provisions of the Code?
18. The contention of Mr. Bashyam for the respondent is that, under Section 150 of the Code of Civil Procedure the Sub-Court, Tanjore, has acquired jurisdiction to execute the decree as the Mannargudi Taluq is within its jurisdiction. The argument is that the Negapatam ‘Sub-Court had jurisdiction to entertain O.S. No. 33 of 1921 as the Mannargudi Taluq was within its jurisdiction and when that taluq was transferred to the jurisdiction of the Sub Court, Tanjore, its business was also transferred to it and, therefore, it has jurisdiction to entertain an application for execution of the decree. Section 150 which is a new section is in the following terms:
19. “Save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is So transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred”. The expression “the business of any Court”, it is urged, means not only the business actually pending in any Court, but the business that may arise from the territory which is transferred from one Court’s jurisdiction to another Court’s jurisdiction and, therfore, when a portion of the territory is transferred from one Court to another, any application which may arise in a suit from that territory could be entertained by the Court to which that territory is transferred. The question whether the expression “the business of any Court” means “pending business of the Court” or whether it includes also the business that may arise from any territory is one not free from doubt. If the expression “business of the Court” includes also business that may arise from any territory, there will be practical difficulties in the way. Supposing the territory of one Court is divided among two or more Courts can an application for execution of a decree passed by a Court be filed in four Courts by reason of the territory of the first Court having been transferred to the four Courts subsequent to the passing of the decree?. When a decree is sought to be executed in more Courts than one, the Court which passed the decree has to transmit the decree for execution to more Courts than one. Is it open to a party by reason of the transfer of a portion of the territory of a Court to apply to any of the Courts among which the territory is divided without reference to the Court which passed the decree? Supposing the Court at A passed a decree and afterwards a portion of the territory of A is distributed among the Courts at B, C and D, can the decree-holder apply for execution of the decree to the Courts at B, C and D simultaneously or even one after the other without getting the decree transferred from the Court at A? It is difficult to see why the expression “business of any Court” should not be given its plain meaning. If the Legislature intended that by transferring the territory in the jurisdiction of one Court to that of another Court, the business present as well as future should be transferred to the latter Court it could have said so in plain terms. It would to say the least, cause much confusion, if not hardship, to parties to give the expression “the business of any Court” the extended meaning which some of the decisions are prepared to give. The learned Chief Justice was of opinion in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.) that by a transfer of territory from one Court to another, the decree which was passed by the former could be executed by the latter by reason of the provisions of Section 150 of the Code of Civil Procedure. Though the point did not actually arise in that case, yet the learned Chief Justice held that Section 150 was in terms wide enough to authorise the Court to which a portion of the terrritory of the Court which passed the decree was transferred to entertain in the first instance any application which might have been to that other Court. He thought that, by framing Section 150 newly the Legislature intended that the Court to which the business was transferred should have the same powers as if the Court itself entertained the business in the first instance. With very great respect, I am unable to hold that by the transfer of territory, the Court to which the territory is transferred is in the same position and invested with the same jurisdiction as the Court which entertained the suit and which passed the decree. If the pending business of a Court is transferred to another Court the Court to which the business is transferred has the same jurisdiction over the business as the Court from which the business was tansferred. But to say that by a mere transfer of territorial jurisdiction the new Court acquired the same jurisdiction with regard to pending suits and applications for execution does not seem to be warranted by the provisions of Section 150 of the Code of Civil Procedure. Ayling, J., who was a party to Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 haltingly agreed with the learned Chief Justice that “by reason of Section 150, the Court to whose jurisdiction territory is transferred, acquires the power to execute a decree of another Court from whose jurisdiction’ it got the territory.” Sadasiva Iyer, J., who was also a party to Subbiah Naiker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251, the first portion of whose judgment is against the view of the learned Chief Justice, agreed with him in the concluding portion of the judgment. In Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 it was held that the Court which passed the decree ceased to have jurisdiction to continue the execution proceedings and that the new Court having territorial jurisdiction over the property attached was the proper Court, to entertain an application for execution, by sale of the property and pass orders thereon. This decision has been overruled by the Full Bench in Seeni Nadran v. Muthu-swamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.). The respondent naturally relies upon Setucherla Sivaskanda Rajah v. Rajah of Jeypore 103 Ind. Cas. 245: 50 M. 882 : (1927) M.W. N. 882 : 25 L.W. 671 : 52 M.L.J. 605 : 38 M.L.T. 351 : A.I.R. 1927 Mad. 627. If the principle of that decision is correct, namely, that the Court with in whose jurisdiction the property is situate, is the proper Court for executing the decree against the property, no doubt it would support the respondent’s contention. In Latchman Pundeh v. Maddan Mohan Shye 6 C. 513 : 7 C.L.R. 521 : 5 Ind. Jur. 414 it was held that “when a Court which has passed a decree has ceased to have jurisdiction to execute it, the application for execution may be made either to that Court, although it has ceased to have jurisdiction to execute the decree, or to the Court which (if the suit wherein the decree was passed were instituted at the time of making application to execute it) would have jurisdiction to try the suit”. Field, J. held that “a Court does not cease to be ‘the Court which passed the decree’ merely by reason that the Head Quarters of such Court are removed to another place, or merely because the local limits of the jurisdiction of such Court are altered.” In Udit Narain v. Mathura Prosad 35 C. 974 : 12 C.W.N. 859 it was held that a Court to which the territory has been transferred had jurisdiction to entertain an application for execution passed by the Court from whose jurisdiction the territory was transferred. In Mouna Gurusamy Naicker v. Muhammadhu Rowther 86 Ind. Cas. 650 46 M. 83 : 16 L.W. 748 : (1922) M.W.N. 743 : 43 M.L.J. 713 : A.I.R. 1923 Mad. 92 Krishnan and Venkata Subba Rao, JJ., held that a Court newly created had jurisdiction under Section 150 of the Code of Civil Procedure to punish the breach of temporary injunction granted by the other Court. They also held that the transfer in Section 150, Civil Procedure Code is not confined to cases of transfer of business of one Court to another, but includes cases where a new Court is given part of the territorial jurisdiction of an old Court and is authorised to try all the business arising within it. In Srinivasa Rao v. Hanumantha Rao 65 Ind. Cas. 727 : 46 M. 1 : 42 M.L.J. 344 : 15 L.W. 458 : A.I.R. 1922 Mad. 10 : (1922) M.W.N. 349 : 31 M.L.T. 79, Spencer and Krishnan, JJ., held that “after the passing of an ex parte decree by Court P in a suit to recover certain immoveable properties part of its territorial jurisdiction including the locality in which the properties were situate was transferred to Court A. Under Section 150, Civil Procedure Code, Court at A had jurisdiction to entertain the application, (for setting aside the ex parte decree passed by the Court at P) and there was nothing in Order IX, Rule 13 of the Code providing the contrary.” If these two cases are correct it would lead to this anomaly. If the Court at A passed an ex parte decree and a portion of its jurisdiction is transferred to the Courts at B and C, an application for setting aside the ex parte decree could be made to the Court at B and an application to execute the decree could be made to the Court at A and an application for attachment of property could be made to the Court at C. Supposing during the pendency of a suit a portion of the territory of A is transferred to the three different Courts at B, C and D can the parties apply to the Court at A for an injunction to the Court at B, for the appointment of a Receiver, to the Court at C for discovery, and to the Court at D for summonses to witnesses? It is a well-known rule of construction that a Statute should not be construed so as to impute absurdity to the Legislature. The expression “transfer of business” can only mean the transfer of business which is pending.
20. If that is the correct meaning of the expression the difficulty suggested above would not arise. If half a dozen suits or a dozen suits of one Court are transferred to another Court applications in such suits could only be made to the Court to which they have been transferred. In this case can an application for execution be made to the Negapatam Court and the District Court within whose jurisdiction A schedule properties are and also to the Sub-Court, Tanjore, because Mannargudi Taluq has been transferred to its jurisdiction? We do not think that the expression “transfer of business” should be given the extended meaning which the learned Judges in Srinivasa Rao v. Hanumantha Rao 65 Ind. Cas. 727 : 46 M. 1 : 42 M.L.J. 344 : 15 L.W. 458 : A.I.R. 1922 Mad. 10 : (1922) M.W.N. 349 : 31 M.L.T. 79 and Mouna Gurusamy Naicker v. Muhammadhu Rowthar 86 Ind. Cas. 650 46 M. 83 : 16 L.W. 748 : (1922) M.W.N. 743 : 43 M.L.J. 713 : A.I.R. 1923 Mad. 92 are inclined to give. In Muthukaruppa Chetty v. Panja Kavundhan 73 Ind. Cas. 956 : 45 M.L.J. 210 : (1923) M.W.N. 405 : 18 L.W. 17 : A.I.R. 1924 Mad. 32 following the decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.), Old field, J. who delivered the judgment of the Court observes: “It is urged that only the former Court has ever had jurisdiction to execute the decree and that the decree-holder’s proper course is to apply for a transfer of the decree to Namakkal. That construction is inconsistent with the decision in Seeni Nadhan v. Muthu-swami Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 28 M.L.T. 223 : (1919) M.W.N. 610 : 11 L.W. 63 (F.B.).” The learned Judge has not discussed the point but thinks that the Full Bench decision has settled the point, namely, that by the transfer of the area in which the judgment debtor lives from, the jurisdiction of the Court which passes the decree to that of another Court, the latter Court has without a transfer of the decree jurisdiction to execute the decree though it is only a money-decree. In Doortas Seshadri Iyer v. Ananthaye 42 Ind. Cas. 671 : 6 L.W. 775 : (1917) M.W.N. 788, it was held by Abdur Rahim and Old field, JJ., that where the properties which are sought to be proceeded against in execution of a decree have been transferred from the jurisdiction of one Court to the jurisdiction of another Court it is the latter Court that is Competent to entertain all applications for execution and not the former Court within whose jurisdiction the properties originally were and which had passed the decree. This can no longer be good law in view of the decision of the Full Bench.
21. The opening words of the section “save as otherwise provided” have to be given their meaning. It is only in cases which are not otherwise provided for that the provisions of Section 150 could be invoked. When Section 38 unequivocally says that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution, is it the proper interpretation of a Statute to overlook Section 38 when reading Section 150? There are a number of provisions in the Code which cannot be held to apply to the Court to which the business is transferred. Supposing the suit in a Small Cause Court is transferred to an original Court will an appeal lie against the decree in such a suit? Section 39, Civil Procedure Code, empowers a Court to transfer a decree passed by it, to another Court for execution in certain cases, one of them is if a decree directs sale or delivery of immoveable property situate outside the local limits of the jurisdiction of the Court which passed it; another reason is if the Court which passed the decree considers for any other reasons which it shall record in writing that the decree should be executed by such other Court, the other two reasons being the judgment-debtor resides or works for gain within the local limits of another Court and the property within the jurisdiction of the Court is not sufficient to satisfy the decree. When sufficient provision is made for the proper execution of decrees it is not proper to import into Section 150 something which the Legislature did not specifically put into it and which it would have done if it was its intention to do so.
22. Granting for argument’s sake that the Tanjore Sub-Court has jurisdicton to execute the decree in this case could it execute it without the decree being sent to it for execution by the Negapatam Sub-Court? A Court may have jurisdiction to try a suit and to pass a decree or to execute a decree but something may have to be done in order to enable it to exercise its jurisdiction. The Negapatam Sub Court is in one District and the Tanjore Sab Court is another District. Under Order XXI, Rule 5, Civil Procedure Code, where the Court to which the decree is to be sent for execution is situate within the same District as the Court which passed the decree such Court shall send the same directly to the former Court. But where the Court to which the decree is to be sent for execution is situate in a different District the Court which passed it shall send it to the District Court in which the decree is to be executed. If the Negapatam Court wants to send the decree for execution against the properties situate in the West Tanjore District, it must be sent not directly to the Tanjore Sub-Court but to the District Court at Tanjore and it is open to the District Court at Tanjore to execute the decree itself or to send it to another Court. In this case there is the further complication that A schedule properties are in Pattukottai Taluq within the territorial jurisdiction of the District Court of Tanjore and outside the territorial jurisdiction of the Tanjore Sub-Court. How does the Tanjore Sub-Court derive jurisdiction to execute a decree which was not passed by it and not sent to it by the District Court which alone has power to send the decree to it for execution? If the transfer of a portion of the territory within the jurisdiction of the Negapatam Sub Court to the jurisdiction of the Tanjore Sub-Court is a criterion for deciding the question of jurisdiction then Rule 5, Order XXI, Civil Procedure Code may be overlooked altogether. In this case could any of the defendants apply to the Negapatam Sub-Court which it is not denied, has jurisdiction to entertain an application for execution or any other application in execution, to record satisfaction of the decree and could one of the defendants apply to the District Court, Tanjore, for setting aside the decree because he was not properly represented in it? Supposing there is a transfer of a decree, though in this case it may not be so, could an application be made to the District Court, Tanjore, for recognising the transfer by the transferee and could the decree-holder at the same time apply to the Tanjore Sub-Court for executing the decree. Without deciding the question whether the Tanjore Sub-Court has jurisdiction to execute the decree or not we are satisfied that the decree must be sent to it, by the District Court for execution before it can entertain an application for execution. In Debi Dial Sahu v. Moharaj Singh 22 C. 764 it was held that a decree for money passed by a Munsif in one District which was sent fox execution to the Court of a Munsif in another District and not to the District Court as provided for in Section 223, Civil Procedure Code could not be executed by the latter as it had no jurisdiction to execute it without an express order of the District Judge under Section 226, Civil Procedure Code. In Kunja Behari Singh v. Tarapada Mitra 49 Ind. Cas. 374 : 4 Pat. L.J. 49 it was held that a Subordinate Judge had no jurisdiction to execute a decree sent to him directly for execution by the trial Court situate in another District and that the decree Should have been sent in the first instance to the District Judge and that the objection to jurisdiction could be taken at that stage. In Abdul Kadir Ibrahim, v. Dulanbibi 20 Ind. Cas. 530 : 37 B 563 : 15 Bom. L.R.672 the plaintiff filed a suit for restitution of conjugal rights against the defendant and for an injunction restraining her from marrying any other person pending the disposal of the suit. The defendant raised the plea of res judicata urging that the plaintiff had previously sued against her in the High Court for similar relief and had failed in it. The previous suit was filed without obtaining the leave of the High Court under Clause 12 of the Letters Patent, the residence of the parties being outside the jurisdiction of the Court. The Court, therefore, dismissed the suit for want of jurisdiction though the issues on the merits were raised and decided, Held on second appeal that the judgment of the previous suit was delivered by a Court not competent to deliver it within the meaning of Section 44 of the Evidence Act and, therefore, the plea of res judicata could not prevail. Scott, C J, observes at page 559 page of 37 B.–[Ed.]: “in this appeal it is contended that the jurisdiction of the High Court to try a suit in which part only of the cause of action arose within the jurisdiction and in which the defendants neither reside nor carry on business within the jurisdiction depends entirely upon the question whether or not leave has been first obtained under Clause 12 of the Letters Patent; and reliance was placed upon the decision of Sir Richard Couch in Hadjee Ismail v. Hadjee Mahomed 13 B. L.R. 91 : 21 W.R. 303 where he said that an order under Clause 12 was not a mere formal order or an order merely regulating the procedure in the suit, but one that has the effect of giving a jurisdiction to the Court which it otherwise would not have; and the judgment of Mr. Justice Telang in Rampurtab Samruthroy v. Paremsukh Chandamal 15 B. 93 was also referred in which it was said that such leave (under Clause 12) affords the very foundation of the jurisdiction”. It is not disputed that a High Court has jurisdiction to try a suit if a portion of the cause of action arose outside its jurisdiction or against a person living outside its jurisdiction provided leave is obtained under Clause 12 of the Letters Patent. But the grant of leave is, a condition precedent to the Court’s jurisdiction. In the well-known case Ledgard v. Bull 9 A. 191 : 13 I.A. 134 : 4 Sar. P.C.J. 741 their Lordships of the Privy Council observed “that there was no jurisdiction, in respect that the suit was instituted before a Court incompetent to entertain it, and that the order of transference was also incompetently made. The District Judge was perfectly competent to entertain and try the suit if it was competently brought, and their Lordships do not doubt that, in such a case, a defendant may be barred, by his own conduct, from objecting to the irregularities in the institution of a suit. When the Judge has no inherent jurisdiction over the subject matter of a suit, the parties cannot, by their consent, convert it into a proper judicial process although they may constitute the Judge their arbiter, and be bound by his decision on the merits when these are submitted to him.” The Sub-Court, Tanjore, would be competent to execute the decree if it was sent to it by the District Court and its jurisdiction could be exercised only after the decree has been sent to it for execution. We think on the authority of these cases that the Sub Court of Tanjore was incompetent to entertain the application for execution.
23.Another contention of the respondent is that the appellant did not raise the objection to the execution in time and that he is barred either by the principle of res judicata or by Section 21 of the Code of Civil Procedure from objecing to the jurisdiction of the Court. On the other hand it is urged for the appellant that there is no final order in the case which could operate as res judicata and that Section 21 does not in terms apply. That the principle of constructive res judicata applies to orders in execution is well-settled. Vide Subramania Iyer v. Rajeswara Sethupathi 38 Ind. Cas. 627 : 40 M. 1016 and Mungal Pershad Dichict v. Grija KantLahiri 8 C. 51 : 11 C.L.R. 113 : 8 I.A. 123 : 4 Sar. P.C.J. 249. The question is, is there an order in the case which is binding on the parties? In view of the decisions on the question of jurisdiction it is unnecessary to discuss this point at length. A great deal of argument has been advanced on both sides and I shall briefly notice the cases quoted at the bar. The Subordinate Judge passed an order settling the terms of proclamation and directing the sale on 31st January, 1927. On the application of some of the defendants he stopped the sale and heard objections. It is urged for the appellant that the order made by him, was revoked or set aside when he adjourned the sale to afford an opportunity to the defendants to urge their objections. We do not think that the Subordinate Judge’s action in giving an opportunity to the defendants to urge their objections and the adjournment of the sale is tantamount to setting aside the order for sale previously passed. It was no doubt open to him to have refused to hear them and gone on with the sale if he found that the objections were unsustainable. In E.A. No. 61 of 1927 he directed that “notice should go in regard to the claims for equity to the other persons interested in schedule A.” He did not set aside the order for sale with regard to the properties in which the appellant is interested. The appellant should have come and objected to the execution as soon as the notice was served on him. Notice was properly served but he did not choose to be present at the time of the settlement of the proclamation and it is not now open to him to say that the order for sale is not binding on him. See the recent decision of the Calcutta High Court in Maharaj Bahadur Singh v. Sachindra Nath Roy 113 Ind. Cas. 562 : 32 C.W.N. 309 : A.I.R.1928 Cal. 328. Chidambaram Chetti v. Kandasami Goundan 74 Ind. Cas. 155 : 46 M. 768 : (1923) M.W.N. 571 : 45 M.L.J. 316 : 18 L.W. 757 : A.I.R. 1924 Mad. 1 (F.B) the Full Bench decision is not applicable to the present case. There the defendant did not attend at the hearing of the application to settle the terms of the sale proclamation and it was held that his legal representatives were not estopped on the principle of res judicata from disputing thereafter the liability of the property to attachment. In Subramania Iyer v. Rajeswara Sethupathi 38 Ind. Cas. 627 : 40 M. 1016 notice went, to the respondents to show cause why they should not be brought on record as the legal representatives of the judgment debtor for purposes of execution. They did not appear and an order was made ex parte. It was held that they were not estopped by this order from moving to set aside the attachment on the ground that the properties did not belong to the judgment-debtor. In the case of legal representatives of the judgment-debtor when notice goes to them to show cause why the decree should not be executed the Court does not decide whether certain property was the property of the deceased judgment-debtor or not and, therefore, an objection that the property sought to be proceeded against did not belong to the judgment-debtor could be raised by the legal representatives. The purpose of the notice and what is intended to be decided by the Court should be considered in applying the principle of res judicata to execution proceedings. Section 21 cannot in terms apply to execution proceedings although the principle applies to them, for it says no objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest opportunity and in all cases where issues are settled at or before such settlement. In execution proceedings it could not be said that any issues are settled. But if a judgment-debtor does not object to the territorial jurisdiction and allows execution to proceed against him he cannot afterwards turn round and say that the Court had no territorial jurisdiction. In this case as we hold that the Court was not competent to entertain the application for execution the waiver of the objection to territorial jurisdiction would not debar the appellant from raising the question of jurisdiction of the Court on the ground of its competency.
24. In the result the appeal is allowed but in the circumstances without costs both here and in the lower Court.
