Judgement

Appeal (No. 34 of 1927) from a decree of the Court of the Judical Commissioner of Oudh (January 6, 1925) affirming a decree of the Subordinate Judge of Hardoi.

The appeal arose out of an application made by the appellant in 1924 for a declaration that proceedings against him in execution of a mortgage decree, obtained against his father in the Subordinate Court at Lucknow, were illegal and without jurisdiction. The decree had been transferred to the Court at Hardoi for execution, and upon the death of the judgment-debtor that Court, in August, 1920, after notice to the appellant, ordered that the execution should proceed against him. He contended that under s. 50, sub-s. 1, of the Code of Civil Procedure, 1908, the order could be made only by the Court which had made the decree.

The Subordinate Judge dismissed the application on the ground that the applicant having made to the Hardoi Court several applications in the proceedings had waived the objection.

The Court of the Judicial Commissioner on appeal, was of opinion that having regard to Order xxi ., r. 22 (1.) (6), the order to proceed against the representative of the deceased judgment-debtor was properly made by the Court at Hardoi. The learned judges were further of opinion that even if under s. 50 there should have been first an application to the Court at Lucknow, the omission to make it was merely an irregularity, and that the defect had been waived.

1927. Oct. 28, 31. De Gruyther K.C. and Dube for the appellant. Having regard to s. 50 of the Code of Civil Procedure the Court at Lucknow was the only Court which had jurisdiction to order that the execution should proceed against the appellant as representative of the deceased. The scheme of the Code is that all questions as to the persons against whom execution is to proceed are to be determined by the Court which has made the decree, while questions as to the mode of its satisfaction are to be dealt with by the Court executing the decree. The question who may be the representative may be one of great importance. Great inconvenience would arise if there were concurrent jurisdiction in the matter, as a decree may be transferred to more Courts than one for execution. There being no jurisdiction in the Hardoi Court to make the order, the defect could not be cured by waiver or acquiescence. [Reference was made to Seth Shapurji Nana Bhai v. Shankar Dat Dube (( 1895) I. L. R. 17 A. 431.) ; Tameshar Prasad v. Thakur Prasad (( 1903) I. L. R. 25 A. 443.) ; Sham Lal Pal v. Modhu Sudan Sircar (( 1895) I. L. R. 22 C. 558) ; distinguished in Amar Chandra Banerjee v. Guru Prosunno Mukerjee (( 1900) I. L. R. 27 C. 488.) ; Jogendra Nath Roy v. Rasik Chandra, Banerjee (( 1905) 2 Cal. L. J. 544.); and Swaminatha Ayyar v. Vaidyanatha Sastri , (( 1905)

I. L. R. 28 M. 466.)] The appellant concedes that if there was a mere irregularity it was waived.

Sir George Lowndes K.C. and Wallach for the respondents. The Court which made the decree had not exclusive jurisdiction to make the order now in question. Order xxi ., r. 22 (( 1905) I. L. R. 28 M. 466.), provides that " the Court executing the decree is to issue a notice to the alleged representative. Moreover, the Court of transfer has jurisdiction generally with regard to the execution. Sect. 47 of the Code provides that all questions relating to an execution are to be determined by the Court executing the decree. The decision in Sham Lal Pal v. Modhu Sudan Sircar (3), that the making of the order by the Court of transfer is merely an irregularity in procedure, wa3 right. In Seth Shapurji Nana Bhai v. Shankar Dat Dube (1), s. 248 of the Code of 1882 (corresponding to Order xxi ., r. 22) was not referred to ; further, s. 47 of the Code of 1908 is clearer than s. 244 of the Code of 1882. Moreover, it was not essential that the representative of the deceased judgment-debtor should be substituted Shao Prasad v. Hira Lal . (( 1889) I. L. R. 12 A. 440.) There was therefore at most an irregularity which was cured by waiver. Even if there was a wrong exercise of jurisdiction the defect was one curable by waiver Fry v. Moore (( 1889) 23 Q. B. D. 395.) and Oulton v. Radcliffe . (( 1874) L. R.9C.P. 189.)

De Gruyther K.C. in reply. Here there was an absolute want of jurisdiction, not merely a wrong exercise of a jurisdiction inherent in the Court; the distinction is drawn in Gurdeo Singh

v. Chandrikah Singh, (( 1907) I. L. R. 36 C. 193, 205.)

1928. March 29. The judgment of their Lordships was delivered, having been prepared by

LORD SINHA. (Lord Sinha died in India on March 4.) This is an appeal from an order of the Court of the Judicial Commissioner of Oudh, which confirmed an order of the Subordinate Judge of Hardoi, dismissing the appellants application that the proceedings in execution of the respondents decree against him should be discontinued.

The facts are simple. The respondents obtained a decree absolute for sale on a mortgage against Raja Durga Prasad (since deceased), the father of the appellant, in the Court of the Subordinate Judge of Lucknow. As the property which the decree-holder sought to sell under that decree was situate in the district of Hardoi, the Subordinate Judge of Lucknow, who passed the decree, sent it for execution to the Court of the Subordinate Judge of Hardoi under s. 39 of the Code of Civil Procedure, 1908, and the respondents in due course started an execution proceeding (No. 175 of 1916) in the Hardoi Court.

The judgment-debtor died later, namely on April 23, 1920. On May 25 following the respondents "filed a petition in the Hardoi Court, stating therein the fact of the death of Raja Durga Prasad, and praying that in the place of Raja Durga Prasad (deceased) the name of his eldest son, Kunwar Jang Bahadur, be brought on the record as his representative, and that execution proceedings be taken against the said representative. The Subordinate Judge of Hardoi entertained the application and issued a notice to the appellant. No cause being shown, an order was made on August 4, 1920, substituting the appellant in the place of his deceased father upon the record of the execution proceeding.

On August 10, 1920, the Subordinate Judge of Hardoi made the following order " In this case, Kunwar Jang Bahadurs name having been substituted for that of Raja Durga Prasad, the deceased judgment-debtor, an amendment be made in the execution application and the Register, and papers be sent to the Court of the Sale Officer, Hardoi, for sale proceedings."

During the sale proceedings the appellant made various objections from time to time both in the Court of the Subordinate Judge and of the sale officer (the Collector of the District). Amongst others, on February 21, 1921, he obtained a postponement of the sale for two months on the allegation that he wanted to effect a private sale of the property, and promised through his pleader not to put forth any objections relating to the proclamation or any other objection on the next date. The sale was postponed as the decree-holders pleader accepted the terms offered.

A postponement on similar terms was also obtained on January 20, 1923.

After the proceedings had been pending for three and a half years the appellant for the first time put in a petition before the sale officer on April 10, 1924, that the sale proceedings were illegal and without jurisdiction, inasmuch as the decree-holder did not get the name of the appellant entered in the decree of the Court executing the same, in accordance with the provisions of s. 50 of the Code of Civil Procedure. The sale officer referred the matter to the Civil Court—i.e., the Subordinate Judge of the Court of Hardoi—where the same petition was repeated.

On April 22, 1924, the Subordinate Judge rejected the application for further postponement of the sale and to discontinue the execution proceeding.

Against that order there was an appeal to the Court of the Judicial Commissioner, which confirmed the order of the Subordinate Judge, and the present appeal is against the last order.

It is argued that, though the execution proceeding was pending before the Hardoi Court, when the judgment-debtor Rajah Durga Prasad died, the application to substitute the appellant in his place as his representative could only be made to the Lucknow Court which passed the decree, and that the Hardoi Court had no jurisdiction to make that order.

Obviously, there are no merits in this appeal. It was not suggested at any stage that the appellant was not the legal representative of the deceased judgment-debtor nor was it denied that by the various applications he made to the Hardoi Court he had acquiesced in its jurisdiction until the last moment when the property was being actually put up for sale.

But it is argued that the order of August 4, 1920, substituting the appellant in place of his father, was a nullity, and that all proceedings subsequent thereto in the Hardoi Court were coram non judice and as such void.

Sect. 50 of the Code of Civil Procedure, 1908, is relied upon in support of the argument that the Lucknow Court alone was competent to make the order for substitution.

There is an apparent divergence of opinion among the different High Courts in India on this question. It has been held by the High Courts of Bombay, Allahabad and Madras that the application for execution in such a case should be made to the Court which passed the decree, and that the Court to which the decree is sent for execution is not competent to entertain the application and make an order of execution against the legal representative. On the other hand, it has been held by the High Court of Calcutta that an application for substitution if made in such a case to the Court to which the decree is sent for execution, is nothing more than an irregularity which would be cured by the provisions of s. 578 of the Code of 1882.

The question turns upon the construction of s. 50, sub-s. 1, of the Code of Civil Procedure of 1908, which is as follows 11 Where a judgment-debtor dies before the decree has been fully satisfied the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.* Now, the words " which passed it" were not in the corresponding section (namely, s. 210) of the Code of Civil Procedure, 1859 , but were inserted in s. 234 of the Code of 1877, and have been since continued in s. 234 of the Code of 1882 and s. 50 of the Code of 1908.

The question is, was the effect of the introduction of those words to confer an exclusive jurisdiction on the Court which passed the decree in the matter of substitution or merely to lay down a rule of procedure as to which of the two Courts an application for substitution should be made?

In order to decide that question, it is necessary to examine the provisions of the Code as to execution when a decree is transferred. Under cl. (c) of s. 39, sub-s. 1, of the Code of 1908, a decree, directing the sale of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, may be transferred for purposes of execution to the Court within whose jurisdiction the property is situated. On such transfer the former Court does not altogether lose seisin of the decree. But the Court of transfer obtains jurisdiction to deal with that particular execution proceeding, and retains such jurisdiction until such execution is withdrawn or stayed or until it certifies to the Court which passed the decree either that the decree has been executed or if it fails to execute the decree, the circumstances attending such failure (s. 41).

If the judgment-debtor dies before any such certificate is issued the Court of transfer does not lose its jurisdiction over the execution proceeding, which does not abate by reason of the death. But before execution can proceed against the legal representative of the deceased judgment-debtor the decree-holder must get an order for substitution from the Court which passed the decree. This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived, and the party who has acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.

Looked at from this point of view there does not appear to be any real conflict between the different decisions in India.

In the case of Sham Lal Pal v. Modhu Sudan Sircar (I. L. R. 22 C. 558.) the application under s. 234 of the Code of 1882 (now s. 50) was regarded as mere matter of form, i.e., of procedure, as explained by Banerjee J. in Amar Chandra Banerjee v. Guru Prosunno Mukerjee . (I. L.

R. 27 C. 488, 493.) Similarly in the case of Swaminatha Ayyar v. Vaidyanatha Sastri (I. L. R. 28 M. 466.), when the case came on for final hearing, the decision of the point referred to the Full Bench, Sir Arnold White C. J. and Subramania Ayyar J. held that the irregularity involved in the order for substitution having been made by the Court to which the decree had been sent for execution could not be cured by virtue of s. 578 of the then Code, " as objection was taken by the appellants to the application being entertained by the Court." In other words, there had been no such waiver as would cure a defect in procedure, though no waiver could confer jurisdiction where none existed.

After consideration of all the circumstances of the case under appeal their Lordships come to the conclusion that the Hardoi Court had jurisdiction to deal with the matter of the execution transferred to it; that the exercise of such jurisdiction as against the appellant, though irregular in the first instance, was submitted to for a considerable time by him. He cannot now be heard to object to the exercise of such jurisdiction, and it would be to permit a gross abuse of procedure if he was allowed to do so.

Their Lordships will humbly advise His Majesty that this appeal should be dismissed with costs.