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RAGHUBAR DAYAL, K. SUBBA RAO, B. P. SINHA, J. R. MUDHOLKAR
Hira Lal Patni – Appellant
Versus
Kali Nath – Respondent
The full text of the judgment is provided in the legal document as follows:
SUPREME COURT OF INDIA
B.P. SINHA, C.J.I., K. SUBBA RAO, RAGHUBIR DAYAL AND J.R. MUDHOLKAR, JJ.
Civil Appeal No. 237 of 1958.
4th May, 1961. (!) (!) (!) (!)
Judgment
SINHA, C.J.I.: This appeal... [summary of facts and proceedings leading to the decree transfer and execution objection]. (!) (!) (!)
The only ground... is that the suit... was wholly incompetent for want of territorial jurisdiction... Strong reliance was placed upon [a Privy Council decision, but not cited here]. In our opinion, there is no substance in this contention. There was no inherent lack of jurisdiction... Whether the leave obtained had been rightly obtained or wrongly obtained is not a matter which can be agitated at the execution stage. The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction... But in the instant case there was no such inherent lack of jurisdiction. (!)
The decision of the Privy Council... is an authority for the proposition that consent or waiver can cure defect of jurisdiction but cannot cure inherent lack of jurisdiction... That decision has no relevance to a case like the present... The objection to its territorial jurisdiction is one which does not go to the competence of the Court and can, therefore, be waived... Competence of a court to try a case goes to the very root of the 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 S. 21 of the Code of Civil Procedure. Having consented to have the controversy... resolved by reference to arbitration through court, the defendant deprived himself of the right to question the authority of the Court... He is equally estopped from challenging the authority of the arbitrator to render the award... (!)
The appeal is accordingly dismissed with costs. (!) (!)
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Judgment
SINHA, C.J.I. : This appeal, on a certificate by the High Court of Judicature at Allahabad, arises in execution proceedings, taken by the decree holder-respondent, in the following circumstances. The appellant wished to acquire shares in certain mills, popularly known as John Mills , at Agra. He engaged the services of the respondent to negotiate the deal on certain terms, The bargain was concluded, and the appellant, together with another person, purchased the entire interest of one Major A. U. John by an indenture of sale dated July l0, 1946. The respondent instituted a suit, being suit No. 3718 of 1947, on the original side of the High Court of Judicature at Bombay for recovery of his commission, amounting to one lakh of rupees, in respect of the transaction afore said.
2. The suit was eventually referred to the arbitration of one Mr. W. E. Pereira, administrator of the estate of the aforesaid Major A. U. John, deceased. One of the defences taken by the appellant, as defendant in the action, was that the suit filed in the Bombay High Court, as aforesaid, after obtaining leave of that Court under Cl. 12 of the Letters Patent, was outside the territorial jurisdiction of th
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