The objection regarding the territorial jurisdiction of the courts below was not taken in the written statement and no issue was framed on the question of jurisdiction. Therefore, the objection was hit by the mischief of Section 21 of the Code of Civil Procedure, 1908.

( 1 ) THE order dated 22nd March, 1996 passed by 1st Additional District Judge. Firozabad in Misc. Appeal No. 65 of 1995 affirming the order dated 16th September, 1995 passed by the Civil judge (Senior Division), Firozabad in Succession Case No. 74 of 1990 is under challenge in this civil revision.

( 2 ) MR. A. Y. Yadav, learned counsel for the petitioner had assailed the impugned order on the ground that the finding of both the Courts below suffers from perversity. The conclusions arrived at are based on no material. That apart, he further contends that the Court, which have granted the Succession Certificate did not have territorial jurisdiction. The learned trial court had overruled the said objection without adverting to the materials on record and the legal proposition. Whereas the learned lower appellate court had referred to the said objection but did not decide the same nor it had adverted to the objection so raised. He further contends that though such objection was not taken in the written statement but yet the question was raised before the trial court and the trial court had entertained the said objection and had decided the same. Therefore, it would not hit by the mischief of Section 21 of the Code of Civil Procedure. Since the trial court had come to an adverse finding with regard to the territorial jurisdiction and the lower appellate court did not advert to the same, the impugned order should be set aside and the matter should be remanded for fresh decision. He then contends that by reason of Section 379 of the Indian Succession Act, the application for Succession Certificate should have accompanied by a deposit of a sum equivalent to the court fees payable on the certificate if granted. According to him, in the present case admittedly, no deposit was made along with the application. Therefore, there has been an infraction of Section 379 which is mandatory and as such the application could not be maintained. Elaborating his argument on the question of territorial jurisdiction Mr. Ajay Yadav contends that Section 371 prescribes that such application is to be filed before the District Judge within whose jurisdiction the deceased ordinarily resided at the time of his death. In the present case, the deceased died at Kanpur and he was residing in kanpur for last five years. Therefore, Kanpur was his ordinary residence at the time of his death. Therefore, the application could not have been maintained at Firozabad. Once a person ordinarily resides at the time of his death at a place then his permanent address in that event the place where he resided ordinarily at the time of his death would be taken to be the place where such application is to be filed. In such circumstances, the permanent address would become immaterial. According to him, if at the time of his death the deceased had no fixed place of aboard in that event, such application is to be filed within the Jurisdiction where the properly or any part of it may be found. Thus, according to him, if there is no ordinary place of residence at the time of his death in that event, the application could not have been filed at the placed of his permanent address. On these grounds, he claims that the impugned order should be set aside. Since both the Courts below did not have jurisdiction in view of Section 371 of the Indian succession Act.

( 3 ) MR. A. S. Diwakar, learned counsel for the respondents on the other hand contends that the petitioner having not taken this objection in the written statement and no issue having been framed on the question of jurisdiction, mere raising the question at the time of argument and adverted thereto by the trial court would not take away the case outside the scope and purview of section 21 of the Code of Civil Procedure. According to him, such objection is to be taken before the issues are settled and there should be issue framed in order to enable the parties to adduce sufficient evidence. Unless such issue is frame