Objections to territorial jurisdiction should be entertained only if there has been a consequent failure of justice, as per Section 21 of the Code of Civil Procedure.

JUDGMENT

Navin Chawla, J. - This petition has been filed by the petitioner seeking setting aside of the judgment and order dated 06.07.2019 passed by the learned Additional District Judge-03, North District in Suit, being CS No. 2014 of 2016 titled Harsharan Kaur Batra v. Gurmeet Singh Sethi, on the ground of it having been passed by a Court which had no territorial jurisdiction to entertain the Suit.

2. The above referred Suit was partially decreed by the learned Trial Court exercising power under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code).

3. On the respondent filing an Execution Petition, being Ex. No. 64 of 2020, the learned Trial Court noticed that the suit property in fact fell within the jurisdiction of North-West District and therefore, vide its order dated 15.02.2020, transferred the Execution Petition to that Court.

4. Based on this order, the petitioner has challenged the decree itself before this Court contending that once the learned Executing Court is of the opinion that the suit property lay within the jurisdiction of North-West District, the decree itself has been passed by a Court which lacked territorial jurisdiction to entertain the Suit and therefore, is a nullity.

5. In support of his claim, the learned counsel for the petitioner has placed reliance on the judgments of the Supreme Court in Kiran Singh & Ors. v. Chaman Paswan &Ors., (1954) AIR SC 340 and Hindustan Zinc Ltd. v. Ajmer Vidyut Vitran Nigam Ltd.,2019 17 SCC 82.

6. On the other hand, the learned counsel for the respondent, placing reliance on Section 21 of the Code, submits that an objection to a decree on account of lack of territorial jurisdiction cannot be raised unless such objection has been taken in the Suit at the earliest possible opportunity and at least before the framing of issues. He submits that in the present case, no such objection was taken by the petitioner before the learned Trial Court and in fact, even in this petition there is no consequent failure of justice pleaded by the petitioner.

7. Placing reliance on the judgment of the Supreme Court in Mantoo Sarkar v. Oriental Insurance Co. Ltd. & Ors., (2009) 2 SCC 244, and of this Court in Rehmania Academy of Sciences, Mathura v. Shri B.B.D Bhargava & Ors., (2011) 4 AD(Del) 579, the learned counsel for the respondent submits that it is only the lack of subject matter jurisdiction that may render a decree a nullity; otherwise the party complaining must prove prejudice having been caused to it.

8. I have considered the submissions made by the learned counsels for the parties.

9. Section 21 of the Code reads as under:

"21. Objections to jurisdiction- (1) 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 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.

(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."

10. A reading of the same would clearly show that an objection as to the place of suing cannot be entertained by any Appellate or Revisional Court unless such objection was taken in the Suit at the earliest possible opportunity and in any case, before the issues were settled