Honble ARORA, J.–This appeal is directed against the judgment dated 20-1-97 passed by the Civil Judge (Senior Division) cum Chief Judicial Magistrate, Hanumangarh, by which the learned Civil Judge dismissed the election petition filed by the appellant-petitioner.

(2). Learned counsel for the appellant, though challenged the order passed by the learned Civil Judge on merit as well as on the ground of jurisdiction, but the appeal can be disposed of only on the question of jurisdiction of the trial Court in passing the decree and it is not necessary to go into the merits of the appeal.

(3). The contention of the learned counsel for the appellant is that the power to hear the election petition under the Municipalities Act is vested in the District Judge having jurisdiction over the area in which the Municipal Office is situated,or to the Additional District Judge subordinate to the District Judge, to whom the District Judge, after assigning the reasons, has transferred the election petition for hearing and disposal and the Civil Judge, who passed the order, has no jurisdiction to hear and decide the election petition.

(4). The contention of the learned counsel for the respondents, on the other hand, is that no such objection regarding jurisdiction was taken by the appellant before the learned Civil Judge and, therefore, now, in view of Section 21 of the C.P.C., the appellant-petitioner cannot be permitted to raise such objection regarding the question of jurisdiction in the appeal. It has, also, been contended by the learned counsel for the respondents that even on merit, the appellant has no case and no prejudice has been caused to the appellant. Even on merit, the judgment is sustainable and no purpose will be served in remanding the case.

(5). I have considered the submissions made by the learned counsel for the parties.

(6). The question, which requires consideration is: whether the decree and judgment passed by the learned Civil Judge can be sustained and whether the objection regarding jurisdiction can be taken in an appeal ?

(7). Section 40 of the Rajasthan Municipalities Act, 1959 (for short, `the Act) deals with the Authority which shall hear the election petition. The amended Sec- tion 40, which was substituted by the Second Amendment Act, 1994, reads as under:–

``Section 40. Who shall hearing petition. (1) An election petition may be presented to, and shall be heard by, the District Judge having jurisdiction over the area in which the municipal office is situated :

Provided that where an election petition is presented as aforesaid to the District Judge, he may, for reasons to be recorded in writing, transfer the same for hearing and disposal to an Additional District Judge subordinate to him.

(2) The District Judge or Additional District Judge by whom it is heard in accordance with the provisions of Sub-section (1) is hereinafter referred to as the `Judge.

(8). Section 40 of the Act authorises only the District Judge or the Additional District Judge having jurisdiction to hear the election petition. No other authority has been authorised by the Act to hear and decide the election petition under the Rajasthan Municipalities Act. The learned Civil Judge, under Section 40 of the Act, was not vested with the powers to adjudicate the election petition under the Rajasthan Municipalities Act. The decree and judgment passed by the learned Civil Judge was, therefore, wholly without jurisdiction and deserves to be quashed and set-aside.

(9). The next question which requires consideration is: whether the objection regarding the jurisdiction can be taken in appeal ? When the Court, which has decided the matter, had no jurisdiction to adjudicate he dispute, the decree passed by such Court is nullity and its validity can be questioned at any time, even in an appeal or even during the execution proceedings. Consent of the parties or the si- lence or inaction of the parties in challenging the jurisdiction will not confer the jurisdiction on the C

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