# SNEH LATA GOEL v. PUSHPLATA & ORS

- **Citation:** [2019] 1 S.C.R. 463
- **Court:** Supreme Court of India
- **Decided:** 2019-01-07
- **Case number:** Civil Appeal No. 116 of 2019
- **Bench:** Dr. D. Y. Chandrachud, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sneh-lata-goel-v-pushplata-ors-33409
- **Pages:** 14

## Headnote

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
A
B
C
D
E
F
G
H
464
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 c

## Text

A
B
C
D
E
F
G
H
463
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
A
B
C
D
E
F
G
H
464
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
A
B
C
D
E
F
G
H
465
355 : [2006] 10 Suppl. SCR 740; Mantoo Sarkar v.
Oriental Insurance Co. Ltd. (2009) 2 SCC 244 : [2008]
17 SCR 753; Vasudev Dhanjibhai Modi v. Rajabhai
Abdul Rehman (1970) 1 SCC 670 : [1971] 1 SCR 66 -
relied on.
Kiran Singh v. Chaman Paswan AIR 1954 SC 340 :
[1955] SCR 117 - referred to.
Case Law Reference
[1955] SCR 117
referred to
Para 8
[2005] 3 Suppl. SCR 495
relied on
Para 8
[1962] SCR 747
relied on
Para 13
[2006] 10 Suppl. SCR 740
relied on
Para 13
[2008] 17 SCR 753
relied on
Para 13
[1971] 1 SCR 66
relied on
Para 14
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 116 of
2019.
From the Judgment and Order dated 17.07.2018 of the High
Court of Jharkhand at Ranchi in W.P. (C) No. 3298 of 2016.
Mukul Rohatgi, Sr. Adv., Samdarshi Sanjay, Shyamal Kumar, Sunil
Tomar, Advs. for the Appellant.
S. R. Singh, Sr. Adv., Mangal Prasad, Ms. Sunita Pandit, Krishna
Kumar Yadav, Avnish Singh, Ankur Yadav, D. S. Parmar, Ms. Sujeeta
Srivastava, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J. 1. Leave
granted.
2. This appeal arises from a judgment and order of the High Court
of Jharkhand at Ranchi dated 15/17 July 2018.
3. The facts lie in a narrow compass:
On 9 May 1985, a partition suit1 was instituted by Smt. Saroja
Rani, daughter of Late Rai Sri Krishna (since deceased), in respect of
 1 154/1985
SNEH LATA GOEL v. PUSHPLATA
A
B
C
D
E
F
G
H
466
SUPREME COURT REPORTS
[2019] 1 S.C.R.
her 1/4th share in the suit property which comprises of properties at
Ranchi and Varanasi. The suit was instituted at Ranchi in the Court of
the Special Subordinate Judge. The defendant in that suit (since deceased)
filed a petition before the High Court of Judicature at Patna questioning
the jurisdiction of the Ranchi Courts. The petition was disposed of by
the High Court on 10 May 1989 with the direction that any objection to
jurisdiction would be decided by the Special Subordinate Judge at Ranchi
as a preliminary issue. A preliminary decree was passed ex-parte on 13
June, 1990 granting the Petitioner her extent of 1/4th share in the schedule
property. A final decree was passed on 5 April 1991 confirming the
preliminary decree passed on 13 June, 1990.
One of the defendants in the partition suit filed a title suit2 before
the Court of Subordinate Judge, Ranchi. On 22 July 2003, the suit was
dismissed for non-prosecution. The first respondent filed a title suit3 before
the Court of Subordinate Judge at Varanasi which was dismissed under
Order VII, Rule 11 of the CPC on 12 April 2005 on the ground of being
barred under Section 21A of the Code of Civil Procedure 1908 ("CPC").
The first respondent filed an application under Order IX Rule 13 in respect
of the title suit filed at Ranchi which was also dismissed as withdrawn
on 19 February 2008.
Since the mother of the appellant was alive when the suit was
instituted, the claim was confined to a 1/4th share. During the pendency
of the suit, the mother died. As a result, there was a modification in the
share of the three sisters at 1/3rd each. On 18 December 2013, the
Subordinate Judge at Ranchi passed a supplementary final decree in
view of the death of the mother of the appellant and the first respondent
on 9 February 1996.
4. On 12 May 2014, the appellant filed proceedings for the
execution of the final decree at Ranchi.4 On 1 January 2015, the first
respondent filed an objection under Section 47 of the Code of Civil
Procedure contending that the decree dated 13 June 1990, the final decree
dated 5 April 1991 and the supplementary final decree dated 18 December
2013, were without jurisdiction and therefore, a nullity. On 10 March
2015, the first respondent challenged the decree dated 13 June, 1990 in
appeal under Section 96 of the CPC.5 The appeal is pending.
 2 114/1998
 3 176/2000
 4 5/2014
 5 43/2015
A
B
C
D
E
F
G
H
467
5. On 10 March 2016, the executing court dismissed the objections
of the first respondent under Section 47 of the CPC with the following
observations:
"The decree holder is entitled to get the fruits of the decree and
the executing court cannot go behind the decree. When a decree
is made by a court which has no inherent jurisdiction, an objection
as to its validity may be raised in an execution proceeding if the
objection appears on the face of the record. Where the objection
as to the jurisdiction of the court to pass the decree does not
appear on the face of the record and requires examination of the
questions raised and decided at trial, which could have been but
have not been raised, the executing court will have no jurisdiction
to entertain an objection as to the validity of the decree on the
ground of jurisdiction."
Aggrieved by the order of the executing court, the first respondent
initiated proceedings under Article 227 of the Constitution of India. The
High Court by its impugned judgment and order came to the conclusion
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 an
alleged absence of territorial jurisdiction.
6. The High Court observed that the plea that the decree could
not be executed on the ground that it had been passed by a court which
had no territorial jurisdiction to entertain the partition suit could have
been raised under Section 47 of the CPC. The High Court held thus:
"The executing court fell in serious error in law where it has
observed that the executing court will have no jurisdiction to
entertain an objection as to the validity of the decree on the ground
of jurisdiction. Under Section 47 CPC, the petitioner has not
challenged the validity of the decree on merits, rather the plea
taken by her is that the decree cannot be executed for it has been
passed by a court which had no territorial jurisdiction to entertain
Partition Suit No.154 of 1985."
The application raising the objection was hence restored to the
file of the executing court for disposal.
7. Assailing the judgment of the High Court, these proceedings
have been instituted.
SNEH LATA GOEL v. PUSHPLATA
[DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
468
SUPREME COURT REPORTS
[2019] 1 S.C.R.
Mr Mukul Rohatgi, learned senior counsel appearing on behalf of
the appellant submitted that an objection to territorial jurisdiction does
not relate to the inherent jurisdiction of the civil court. Such an objection
has to be addressed before that court and in the event that the court
rejects such an objection, it must be raised before the competent court in
appeal. Consequently, the High Court was in error in directing the
executing court to deal with such an objection. Moreover, it was urged
that the respondent was aware of the proceedings which were taking
place, which is evident from the following circumstances:
(i) The respondent had filed a title suit before the Court at Ranchi
which was dismissed for non-prosecution on 22 July 2003;
(ii) The respondent filed a title suit before the Court at Varanasi
which was dismissed under Order VII, Rule 11 of the CPC on
12 April 2005; and
(iii) The respondent filed an application under Order IX Rule 13 in
respect of the title suit filed at Ranchi which was also dismissed
as withdrawn on 19 February 2008.
Based on these circumstances, it was urged that the objection
which has been allowed to be raised in execution is merely an effort to
delay and obstruct the implementation of the decree which has been
passed in the suit for partition.
8. On the other hand, Mr. S. R. Singh, learned senior counsel
appearing on behalf of the respondents, has urged the following
submissions:
(i) An objection to the lack of territorial jurisdiction is an objection
to the subject matter of the suit and hence of a nature that can
be raised before the executing court. In support, reliance is
placed on the decisions of this Court in Kiran Singh v Chaman
Paswan6 and Harshad Chiman Lal Modi v DLF Universal
Ltd.7;
(ii) The impugned order of the High Court is an interlocutory order
and hence it is not appropriate at this stage to entertain a
proceeding under Article 136 of the Constitution of India; and
 6 AIR 1954 SC 340
 7 (2005) 7 SCC 791
A
B
C
D
E
F
G
H
469
(iii) The case of the respondents all along has been that the
property on the basis of which jurisdiction was founded at
Ranchi did not belong to the common ancestor and in which
event, the civil court at Ranchi had no jurisdiction to entertain
the suit for partition.
9. In assessing the merits of the rival submissions, it would, at the
outset, be necessary to advert to the provisions of Section 21 of the
CPC.
"Section 21(1) postulates that no objection as to the place of suing
shall be allowed by any appellate or revisional court unless the
objection was taken in the court of first instance at the earliest
possible opportunity and in all cases where issues are settled on
or before such settlement, and unless there has been a consequent
failure of justice.
(2) No objection as to the competence of a Court with reference
to the pecuniary limits of its jurisdiction shall be allowed by any
Appellate or Revisional Court unless such objection was taken in
the Court of first instance at the earliest possible opportunity, and
in all cases where issues are settled, at or before such settlement,
and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court
with reference to the local limits of its jurisdiction shall be allowed
by any Appellate or Revisional Court unless such objection was
taken in the executing Court at the earliest possible opportunity,
and unless there has been a consequent failure of justice."
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.
This provision which the legislature has designedly adopted would
make it abundantly clear that 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
SNEH LATA GOEL v. PUSHPLATA
[DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
470
SUPREME COURT REPORTS
[2019] 1 S.C.R.
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.
10. The learned counsel appearing on behalf of the respondents
has submitted that the objection as to the lack of territorial jurisdiction
was raised in the written statement before the trial court. But evidently
the suit was decreed ex-parte after the respondents failed to participate
in the proceedings. The provisions of Section 21(1) contain a clear
legislative mandate that an objection of this nature has to be raised at the
earliest possible opportunity, before issues are settled. Moreover, no
such objection can be allowed to be raised even by an appellate or
revisional jurisdiction, unless both sets of conditions are fulfilled.
11. Learned counsel appearing on behalf of the respondent has
placed a considerable degree of reliance on the judgment of four Judges
of this Court in Kiran Singh (supra).In that case, there was a dispute in
regard to the valuation of the suit. The issue would ultimately determine
the forum to which the appeal from the judgment of the trial court would
lie. If the valuation of the suit as set out in the plaint was to be accepted,
the appeal would lie to the district court. On the other hand, if the
valuation as determined by the High Court was to be accepted, the appeal
would lie before the High Court and not the District Court. It was in this
background that this Court held that as a fundamental principle, a decree
passed by a court without jurisdiction is a nullity and that its validity
could be set up wherever it is sought to be enforced or relied upon, even
at the stage of execution in a collateral proceeding. Moreover, it was
held that a defect of jurisdiction, whether pecuniary or territorial or whether
it is in respect of the subject matter of the action, strikes at the very
authority of the court to pass the decree and cannot be cured even by
the consent of the parties.
The Court then proceeded to examine the effect of Section 11 of
the Suit Valuation Act 1887 on this fundamental principle. This Court
held thus:
"7. Section 11 enacts that notwithstanding anything in Section 578
of the Code of Civil Procedure, an objection that a court which
had no jurisdiction over a suit or appeal had exercised it by reason
A
B
C
D
E
F
G
H
471
of overvaluation or undervaluation, should not be entertained by
an appellate court, except as provided in the section...a decree
passed by a court, which would have had no jurisdiction to hear a
suit or appeal but for overvaluation or undervaluation, is not to be
treated as, what it would be but for the section, null and void, and
that an objection to jurisdiction based on overvaluation or
undervaluation, should be dealt with under that section and not
otherwise. The reference to Section 578, now Section 99 CPC, in
the opening words of the section is significant. That section, while
providing that no decree shall be reversed or varied in appeal on
account of the defects mentioned therein when they do not affect
the merits of the case, excepts from its operation defects of
jurisdiction. Section 99 therefore gives no protection to decrees
passed on merits, when the courts which passed them lacked
jurisdiction as a result of overvaluation or undervaluation. It is
with a view to avoid this result that Section 11 was enacted. It
provides that objections to the jurisdiction of a court based on
overvaluation or undervaluation shall not be entertained by an
appellate court except in the manner and to the extent mentioned
in the section. It is a self-contained provision complete in itself,
and no objection to jurisdiction based on overvaluation or
undervaluation can be raised otherwise than in accordance with
it. With reference to objections relating to territorial jurisdiction,
Section 21 of the Civil Procedure Code enacts that no objection
to the place of suing should be allowed by an appellate or Revisional
Court, unless there was a consequent failure of justice. It is the
same principle that has been adopted in Section 11 of the Suits
Valuation Act with reference to pecuniary jurisdiction. The policy
underlying Sections 21 and 99 of the Civil Procedure Code and
Section 11 of the Suits Valuation Act is the same, namely, that
when a case had been tried by a court on the merits and judgment
rendered, it should not be liable to be reversed purely on technical
grounds, unless it had resulted in failure of justice, and the policy
of the legislature has been to treat objections to jurisdiction both
territorial and pecuniary as technical and not open to consideration
by an appellate court, unless there has been a prejudice on the
merits." (Emphasis supplied)
12. Dealing with the question of whether a decree passed on
appeal by a court which had jurisdiction to entertain it only by reason of
SNEH LATA GOEL v. PUSHPLATA
[DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
472
SUPREME COURT REPORTS
[2019] 1 S.C.R.
undervaluation or overvaluation can be set aside on the ground that on a
true valuation that court was not competent to entertain the appeal, the
Court held that a mere change of forum is not 'prejudice' within Section
11 of the Suits Valuation Act. This Court held thus:
"12. ...it is impossible on the language of the section to come to a
different conclusion. If the fact of an appeal being heard by a
Subordinate Court or District Court where the appeal would have
lain to the High Court if the correct valuation had been given is
itself a matter of prejudice, then the decree passed by the
Subordinate Court or the District Court must, without more, be
liable to be set aside, and the words "unless the overvaluation or
undervaluation thereof has prejudicially affected the disposal of
the suit or appeal on its merits" would become wholly useless.
These words clearly show that the decrees passed in such cases
are liable to be interfered with in an appellate court, not in all
cases and as a matter of course, but only if prejudice such as is
mentioned in the section results. And the prejudice envisaged by
that section therefore must be something other than the appeal
being heard in a different forum. A contrary conclusion will lead
to the surprising result that the section was enacted with the object
of curing defects of jurisdiction arising by reason of overvaluation
or undervaluation, but that, in fact, this object has not been
achieved. We are therefore clearly of opinion that the prejudice
contemplated by the section is something different from the fact
of the appeal having been heard in a forum which would not have
been competent to hear it on a correct valuation of the suit as
ultimately determined."
 (Emphasis supplied)
The Court disallowed the objection to jurisdiction on the ground
that no objection was raised at the first instance and that the party filing
the suit was precluded from raising an objection to jurisdiction of that
court at the appellate stage. This Court concluded thus:
"16. If the law were that the decree of a court which would have
had no jurisdiction over the suit or appeal but for the overvaluation
or undervaluation should be treated as a nullity, then of course,
they would not be stopped from setting up want of jurisdiction in
the court by the fact of their having themselves invoked it. That,
however, is not the position under Section 11 of the Suits Valuation
Act."
A
B
C
D
E
F
G
H
473
Thus, where the defect in jurisdiction is of kind which falls within
Section 21 of the CPC or Section 11 of the Suits Valuation Act 1887, an
objection to jurisdiction cannot be raised except in the manner and subject
to the conditions mentioned thereunder. Far from helping the case of the
respondent, the judgment in Kiran Singh(supra) holds that an objection
to territorial jurisdiction and pecuniary jurisdiction is different from an
objection to jurisdiction over the subject matter. 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.
13. In Hiralal v Kalinath8, a person filed a suit on the original
side of the High Court of Judicature at Bombay for recovering
commission due to him. The matter was referred to arbitration and it
resulted in an award in favour of the Plaintiff. A decree was passed in
terms of the award and was eventually incorporated in a decree of the
High Court. In execution proceedings, the judgment-debtor resisted it on
the ground that no part of the cause of action had arisen in Bombay, and
therefore, the High Court had no jurisdiction to try the cause and that all
proceedings following thereon where wholly without jurisdiction and thus
a nullity. Rejecting this contention, a four judge Bench of this Court held
thus:
"The objection to its [Bombay High Court] territorial jurisdiction
is one which does not go to the competence of the court and can,
therefore, be waived. In the instant case, when the plaintiff obtained
the leave of the Bombay High Court on the original side, under
clause 12 of the Letters Patent, the correctness of the procedure
or of the order granting the leave could be questioned by the
defendant or the objection could be waived by him. When he
agreed to refer the matter to arbitration through court, he would
be deemed to have waived his objection to the territorial jurisdiction
of the court, raised by him in his written statement. It is well settled
that the objection as to local jurisdiction of a court does not stand
on the same footing as an objection to the competence of a court
to try a case. Competence of a court to try a case goes to the
very root of the jurisdiction, and where it is lacking, it is a case of
inherent lack of jurisdiction. On the other hand, an objection as to
the local jurisdiction of a court can be waived and this principle
 8 AIR 1962 SC 199
SNEH LATA GOEL v. PUSHPLATA
[DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
474
SUPREME COURT REPORTS
[2019] 1 S.C.R.
has been given a statutory recognition by enactments like Section
21 of the Code of Civil Procedure."
(Emphasis supplied)
In Harshad Chiman Lal Modi v DLF Universal Ltd.9, this
Court held that an objection to territorial and pecuniary jurisdiction has
to be taken at the earliest possible opportunity. If it is not raised at the
earliest, it cannot be allowed to be taken at a subsequent stage. This
Court held thus:
"30. The jurisdiction of a court may be classified into several
categories. The important categories are (i) territorial or local
jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over
the subject-matter. So far as territorial and pecuniary jurisdictions
are concerned, objection to such jurisdiction has to be taken at the
earliest possible opportunity and in any case at or before settlement
of issues. The law is well settled on the point that if such objection
is not taken at the earliest, it cannot be allowed to be taken at a
subsequent stage. Jurisdiction as to subject-matter, however, is
totally distinct and stands on a different footing. Where a court
has no jurisdiction over the subject-matter of the suit by reason of
any limitation imposed by statute, charter or commission, it cannot
take up the cause or matter. An order passed by a court having
no jurisdiction is a nullity."
In Hasham Abbas Sayyad v Usman Abbas Sayyad10, a two
judge Bench of this Court held thus:
"24. We may, however, hasten to add that a distinction must be
made between a decree passed by a court which has no territorial
or pecuniary jurisdiction in the light of Section 21 of the Code of
Civil Procedure, and a decree passed by a court having no
jurisdiction in regard to the subject-matter of the suit. Whereas in
the former case, the appellate court may not interfere with the
decree unless prejudice is shown, ordinarily the second category
of the cases would be interfered with."
Similarly, in Mantoo Sarkar v Oriental Insurance Co. Ltd11,
a two judge Bench of this Court held thus:
 9 (2005) 7 SCC 791
 10 (2007) 2 SCC 355
 11 (2009) 2 SCC 244
A
B
C
D
E
F
G
H
475
"20. A distinction, however, must be made between a jurisdiction
with regard to the subject-matter of the suit and that of territorial
and pecuniary jurisdiction. Whereas in the case falling within the
former category the judgment would be a nullity, in the latter it
would not be. It is not a case where the Tribunal had no jurisdiction
in relation to the subject-matter of claim...in our opinion, the court
should not have, in the absence of any finding of sufferance of
any prejudice on the part of the first respondent, entertained the
appeal."
14. 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. An executing
court cannot go behind the decree and must execute the decree as it
stands. In Vasudev Dhanjibhai Modi v Rajabhai Abdul Rehman12,
the Petitioner filed a suit in the Court of Small Causes, Ahmedabad for
ejecting the Defendant-tenant. The suit was eventually decreed in his
favour by this Court. During execution proceedings, the defendant-tenant
raised an objection that the Court of Small Causes had no jurisdiction to
entertain the suit and its decree was a nullity. The court executing the
decree and the Court of Small Causes rejected the contention. The High
Court reversed the order of the Court of Small Causes and dismissed
the petition for execution. On appeal to this Court, a three judge Bench
of this Court, reversed the judgment of the High Court and held thus:
"6. A court executing a decree cannot go behind the decree:
between the parties or their representatives it must take the decree
according to its tenor, and cannot entertain any objection that the
decree was incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a decree even if it
be erroneous is still binding between the parties.
8. If the decree is on the face of the record without jurisdiction
and the question does not relate to the territorial jurisdiction or
under Section 11 of the Suits Valuation Act, objection to the
jurisdiction of the Court to make the decree may be raised; where
it is necessary to investigate facts in order to determine whether
the Court which had passed the decree had no jurisdiction to
 12 (1970) 1 SCC 670
SNEH LATA GOEL v. PUSHPLATA
[DR DHANANJAYA Y CHANDRACHUD, J.]
A
B
C
D
E
F
G
H
476
SUPREME COURT REPORTS
[2019] 1 S.C.R.
entertain and try the suit, the objection cannot be raised in the
execution proceeding."
15. In this background, we are of the view that 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.
16. The respondent has filed a first appeal (First Appeal No. 43/
2015) where the issue of jurisdiction has been raised. We must clarify
that the findings in the present judgment shall not affect the rights and
contentions of the parties in the first appeal.
17. 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.
18. We have also not found merit in the contention that the
impugned order of the High Court, being an order of remand, is in the
nature of an interlocutory order which does not brook any interference.
By the impugned order, the High Court has directed the executing court
to entertain an objection to the validity of the decree for want of territorial
jurisdiction. Such an objection would not lie before the executing court.
Moreover, the objection that the property at Ranchi did not belong to the
common ancestor is a matter of merits, which if at all, has to be raised
before the appropriate court in the first appeal.
19. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court. The executing court
shall conclude the execution proceedings expeditiously. There shall be
no order as to costs.
Divya Pandey
 Appeal allowed.