Where the court in execution of the money decree passed by it attached property of the judgment-debtor situate outside its territorial jurisdiction and subsequently transferred the decree for execution to the competent court and that court rejected the claim of the purchaser of the property from the judgment-debtor after the attachment holding that since the purchase was after attachment, no title passed to the purchaser claimant, the failure of the claimant to raise the plea as to illegality of the attachment at the earliest before the trial court cannot preclude him from raising the same in appeal for the first time, particularly when the decree-holder did not object to the said plea being raised by the purchaser claimant, because once it held that the attachment was invalid a failure of justice would be apparent if the purchaser was precluded from raising the objection as to attachment being without jurisdiction only because it was not raised before the executing court.

Jurisdiction—Objection delayed-effect:

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Under Section 5 of the Administrative Tribunals Act (1985), the single member of Tribunal has jurisdiction to decide matter relating to promotion of employee. Unsuccessful party cannot be allowed at a later stage to plead that member had no jurisdiction.

Plea as to lack of jurisdiction:

New plea as to lack of jurisdiction of civil court can be raised at any stage of the proceedings as it goes to the root of the matter and therefore it can be raised at any stage. Moreover, the decision of this question does not require any investigation into facts.

The judgment of a court without inherent jurisdiction, however, precisely certain and technically correct, is a nullity. Section 21 is an exception to the above rule and effects to cure for all purpose defects due to want of territorial jurisdiction except under the conditions specified in it.

In other words, section 21 makes it clear that non-compliance with the provisions of sections 15 to 21 does not render the decree a nullity if objection as to the place of suing has not been taken at the proper time. This section, however, does not cure want of jurisdiction over the subject-matter, nor does it apply to cases of want of pecuniary jurisdiction or exclusive jurisdiction.

All conditions mentioned in the section must be fulfilled before the decree can be set aside, viz., the objection as to place of suing must be taken at the earliest opportunity in the court of first instance and in cases where issues are settled at or before settlement of issues. Even then the court of appeal or revision will not allow the objection unless there has been a failure of justice. The question of territorial jurisdiction cannot be raised in the executing court.

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 has 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 legislature has been to treat objection to jurisdictions both territorial and pecuniary as technical and not open to consideration by an appellate court, unless there has been a prejudice on the merits.

Where in respect of a suit two conditions envisaged by section 21, viz., that objection to jurisdiction was taken in the Court of first instance and that the objection was taken before settlement of issues, were satisfied, but the third condition contemplating failure of justice was not satisfied, the court was not justified in allowing objection to jurisdiction of the Court in appeal.

Objection regarding territorial jurisdiction does not go to root of jurisdiction:

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 has been given a statutory recognition by enactments like section 21 of the Code of Civil Procedure.

In order that an objection to the place of suing may be entertained by an appellate or revisional court, the fulfilment of the following conditions is essential: (1) The objection was taken in the court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (3) There has been a consequent failure of justice. All these three conditions must co-exist.

The validity of a decree can be challenged in execution proceeding only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seizin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it.

Section 21 is a rule of prudence as well as a rule of guidance. If, by an act of omission or commission, the defendant having raised the plea as to jurisdiction does not even ask for trial of the issue on such jurisdiction as a preliminary issue, and allows the trial to go on in the usual course, on all the issues, he should be deemed in such circumstances to have waived his objection as to jurisdiction.

Lack of Jurisdiction and Irregular Exercise of Jurisdiction:

A marked distinction exists between cases in which Courts lack jurisdiction to try them and where jurisdiction is irregularly exercised by Courts. In the former case the Court ought not to have entered upon trial of the suit; in the latter it could have avoided that, but necessarily not.

Competency of a Court to try an action goes to the root of the matter and when such competence is not found, it has no jurisdiction at all to try the case. But objection based on irregular exercise of jurisdiction is a matter which parties can waive.

Equally well settled is the proposition that where there are two or more competent Courts which can entertain a suit, parties to the concerned transaction can contract to vest jurisdiction in one of such Courts to try disputes.

If such a contract is clear, unambiguous, not vague, and explicit, it is not hit by section 28 of the Contract Act. This should not be understood as parties contracting against statute. But this is one of many series of contracts available in mercantile practice and forged in the name of commercial expediency.

However, invariably, the whole question resolves itself into one of fact. If the parties at the inception applied their mind and choose one of the competent courts as the court in which disputes have to be adjudicated and decided upon, and if such a consensus is demonstrable in a given case, Courts ought not to be astute to find a different contract between the parties.

21-A. Baron Suit to set aside decree on objection as to place of suing:

No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.


The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.

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