An objection to territorial jurisdiction can be waived, but an objection to inherent lack of jurisdiction cannot be waived.

JUDGEMENT :- These two appeals have been filed by the judgement-debtor under a decree. They arise out of applications filed by him under Section 47 C.P.C. to declare that the ex parts decrees obtained against him by the decree-holder were null and void for want of the territorial jurisdiction of the court which passed the ex arte decrees. These applications of the judgement-debtor were dismissed. The appeals against the dismissal of the applications also shared a similar fate. The learned Subordinate Judge passed a common judgement in the two appeals holding that the judgement-debtor was not entitled in the execution proceedings to raise a question of want of territorial jurisdiction in the court which passed the decree.

2. Mr. Krishnan, learned counsel appearing for the judgement-debtor in these appeals, submits that the suits against his client were on mortgages of immovable properties situate outside the territorial jurisdiction of the court in which the suits were filed. He further submits that in both the suits preliminary and final decrees for sale were passed by the District Munsif of Tiruvaiyaru as though he had territorial jurisdiction over the subject matter which he in tact did not possess. The learned counsel pointed out that the judgement-debtor had filed written statements in both the suits questioning the territorial jurisdiction of the learned District Munsif. The contention of the learned counsel is that notwithstanding that the suits were tried and decided ex parte against the judgement-debtor, that would not prevent him from applying under Section 47 C.P.C. for a declaration that the decrees were void and unexecutable since they were passed by a court not possessing the requisite jurisdiction.

3. Learned counsel cited in support an old ruling of a Division Bench of this court reported in Satrucherla Sivakanda Raju v. Rajah of Jeypore, AIR 1927 Mad 627. That was a case of a decree in a mortgage suit for sale in which the mortgagor defendant sought to raise the question of want of territorial jurisdiction in the trial court at the stage of execution of the mortgage decree. The mortgagor's particular contention was that the final decree was passed by a court which did not possess the requisite jurisdiction. It would appear that in that case, between the date of the preliminary decree and the date of the final decree in the mortgage suit the local area in which the property was situate was taken away from the jurisdiction of the Sub Court in which the suit was filed. Objection having been taken against execution on the score that the court which passed the decree had no jurisdiction to do so, the question before the court was whether the judgement debtor, by his conduct, had waived his right to object to the jurisdiction before the passing of the final decree. The learned Judges, Wallace and Jackson, JJ. who decided the case, held that even where there was a waiver of a right to object to jurisdiction before the trial court, that would not bar a party from raising the question in execution proceedings. In that view, the learned Judges held that the sale of the mortgaged property in execution of the decree was without jurisdiction and set aside the sales on the ground that the final decree itself was passed by a court without jurisdiction.

4. This decision was apparently cited by Mr. Krishnan because the ground on which the two courts below had rejected the judgement-debtor's objection in the present case was that he must be deemed to have waived his objections to jurisdiction when he remained ex parte both at the stage of the preliminary decree and at the stage of the final decree.

5. While the decision cited by the learned counsel is apposite for the present purpose, I am of the view that it is no longer good law in view of the clear enunciation of the legal position by the Supreme Court in a case reported in Hiralat Patni v. Sri Kalinath AIR 1962 SC 199. The point which arose in the case before the Suprem