On 07 January 2019, the Supreme Court, in Sneh Lata Goel v. Pushplata and others (Civil Appeal No.116/2019), held that an Executing Court does not have the jurisdiction to decide whether the Court that decreed a suit lacked territorial jurisdiction.   

Brief summary of the facts are as follows: 

The Appellant’s mother filed a suit for partition in respect of her 1/4th share in properties situated in Varanasi and Ranchi, before the Special Subordinate Judge, Ranchi. The Court passed a Preliminary Decree, ex parte, granting 1/4th share to the Appellant’s mother and the other members of the family. The Final Decree confirming the Preliminary Decree was also passed thereafter.  Although the Defendants were placed ex parte in the said Partition Suit filed in Ranchi, one of the Defendants filed a Partition Suit in Varanasi that was dismissed for non-prosecution. The Respondent No.1 also filed a title suit in Varanasi which was dismissed.  The Respondent No.1 filed an Application to revive the Partition Suit but the same was dismissed as withdrawn (“Respondent Litigation”). Upon the demise of the Appellant’s mother and the Defendant No.1, the Special Subordinate Judge passed a supplementary Final Decree in 2013. 

The Appellant, thereafter, filed the execution proceedings for execution of the Final Decree at Ranchi. The Respondents No.1 filed an Application under Section 47 of the Code of Civil Procedure (Questions to be determined by Court executing decree) contending that the Final Decree was passed without territorial jurisdiction and is, therefore, a nullity. The Respondent No.1 has also filed an Appeal before the High Court under Section 96 of the Code of Civil Procedure. The Executing Court dismissed the Respondent No.1’s Application holding that the Executing Court cannot go behind the decree. It held that when a decree is made by Court having no inherent jurisdiction, an objection to the same may be raised before the Executing Court if the same is apparent from face of the record. However, where the objection as to jurisdiction requires examination of the questions raised and decided at trial, which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree on the ground of jurisdiction. The High Court, in the Writ Petition filed by the Respondent No.1 challenging the said Order, set aside the Order of the Executing Court holding that the Respondent No.1 has not challenged the validity of the decree on merits but on territorial jurisdiction, and remanded the case back to the Executing Court. 

The Appellant has filed the present Appeal before the Supreme Court challenging the impugned Order of the High Court. 

The counsel for the Appellant submitted that: 

1. Upon examination of Section 21 of the Code of Civil Procedure, it is clear that an objection to territorial jurisdiction does not relate to the inherent jurisdiction of the civil court. Such an objection has to be raised before the same court and in the event the same is rejected, an Appeal may be filed before a competent court in appeal; 
2. The Respondent was aware of the proceedings before the Special Subordinate Court (as is clear from the Respondent Litigation); and 
3. That the Objection filed before the Executing Court is merely an effort to delay and obstruct the implementation of the decree which has been passed in the Suit for Partition. 

The counsel for the Respondent submitted that:

1. An objection to the lack of territorial jurisdiction is an objection as to the subject matter of the suit and can be raised before the Executing Court; 
2. The impugned Order of the High Court is an interlocutory order and cannot be appealed under Article 136 of the Constitution of India; and 
3. The property in respect of which the litigation is ongoing did not belong to a common ancestor. 

The Supreme Court, after considering the submissions of all parties, held as follows: 

“…Sub-section (1) of Section 21 provides that before raising an objection to territorial jurisdiction before an appellate or revisional court, two conditions precedent must be fulfilled: 

the objection must be taken in the court of first instance at the earliest possible opportunity; and 

there has been a consequent failure of justice. 

This provision which the legislature has designedly adopted would make it abundantly clear that an objection to the want of territorial jurisdiction does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. Hence, it has to be raised before the court of first instance at the earliest opportunity, and in all cases where issues are settled, on or before such settlement. Moreover, it is only where there is a consequent failure of justice that an objection as to the place of suing can be entertained. Both these conditions have to be satisfied…In this background, we are of the view that the High Court was manifestly in error in coming to the conclusion that it was within the jurisdiction of the executing court to decide whether the decree in the suit for partition was passed in the absence of territorial jurisdiction…”