Judgment:
ORDER
1. This revision petition is directed against the order of the learned Executing Court whereby he held that the decree will not be executed since it was not passed by the competent Court.
2. Brief facts:-- A preliminary decree for partition was granted by Shri S. K. Kapoor, Subordinate Judge II Class. The valuation of the suit for the purpose of Court fee and jurisdiction was fixed at Rs. 18,000/-. Shri S. K. Kapoor had no pecuniary jurisdiction to try the suit. The learned Executing Court came to the conclusion that since the decree was passed by the Court which had no pecuniary jurisdiction, the decree was illegal. The decree holder has come up in the revision petition assailing the correctness of the order of the learned Executing Court.
3. The view taken by the learned trial Judge is unsustainable. Section 21 of the Code of Civil Procedure enacts that no objection to the place of suing should be allowed by the appellate or revisional Court, unless there was a consequent failure of justice. The objection regarding pecuniary jurisdiction was not raised in the suit by thecontesting defendants it could not be raised in the execution proceedings. This matter came up for consideration before the apex Court in Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, wherein it was held thus (at p. 342):--
'With reference to objection relating to territorial jurisdiction, S. 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 S. 11 of Suits Valuation Act with reference to pecuniary jurisdiction. The policy underlying Ss. 21 and 99, CPC and S. 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. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under S. 11 of the Suits Valuation Act'.
This view was followed by this Court in Inder Singh v. Suba Singh, AIR 1956 Punjab 242 and thereafter in Narain Kumar v. Neki Ram, (1984) 1 Ren CR 362: (AIR 1984 Punj & Har 361). In Narain Kumar's case (supra), the learned Judge after referring to the earlier decision held as under;--
'Shri P. S. Bajaj, Subordinate Judge III Class passed the decree on Dec. 7, 1973, in favour of Neki Ram and against the petitioner and his fasther on the basis of a compromise. No objection was raised by the petitioner regarding the pecuniary jurisdiction of the learned Subordinate Judge before filing the objection petition under S. 47 of the Code of Civil Procedure in the execution proceedings initiated by the decree holder to execute the decree. The observations made by the Supreme Court in Kiran Singh's case (supra) are squarely applicable to the facts of theinstant case. No foundation has been laid by the petitioner to warrant a finding that the lack of pecuniary jurisdiction on the part of the learned Subordinate Judge has prejudiced the case of the petitioner on merits. The ratio of the decisions in Kiran Singh's case (AIR 1954 SC 340) (supra) and Mahadeo's case (AIR 1969 Raj 304) (supra) also support the case of Neki Ram decree holder that the objection regarding the lack of pecuniary jurisdiction of the learned Subordinate Judge cannot be raised in execution proceedings by the petitioner in the absence of any prejudice on merits'.
This matter was again considered by the learned single Judge of this Court in Niranjan Lal (Dead) v. Chhotey Lal (1988) 94 Pun LR 466 and it was held thus:--
'Thus, obviously the intent of the Legislature was to curtail the time of taking objection to territorial or pecuniary to the earliest possible opportunity and debarring a party from taking such objection in the Appellate or Revisional Court for the first time, unless it has resulted in failure of justice. As a matter of fact, there could not be any failure of justice if a suit triable by a Sub Judge I Class had been tried by a Sub Judge III Class. Admittedly, no objection was taken by the defendant regarding the pecuniary jurisdiction before the trial Court. The lower Court has taken a wrong view by holding that the provisions of S. 21 of the Code of Civil Procedure are applicable to the Appellate or Revisional Court and not to the Court executing the decree. Taking up such objections before the Appellate or the Revisional Court stand on the better footing than before the executing Court, as the latter cannot go behind or beyond the decree passed by the trial Court'.
4. For the aforesaid reasons this revision petition is allowed. The impugned order under challenge is quashed. The learned executing Court will revive the execution proceedings and proceed with the same expeditiously. The parties through their Counsel are directed to appear before the learned executing Court on May 31, 1989.
5. Petition allowed.