SNEH LATA GOELversusPUSHPLATA & ORS.

                          [2019] 1 S.C.R. 463                                 463


                          SNEH LATA GOEL                                      A
                                    v.
                         PUSHPLATA & ORS.
                     (Civil Appeal No. 116 of 2019)
                          JANUARY 07, 2019                                    B
  [DR. D. Y. CHANDRACHUD AND HEMANT GUPTA, JJ.]
       Code of Civil Procedure, 1908 – ss.21 and 47 – Partition suit
was instituted – Final decree was passed confirming the preliminary
decree – Further, supplementary final decree was also passed –
                                                                              C
Appellant filed proceedings for execution of the final decree – First
respondent filed objection u/s.47, CPC contending that the decrees
passed were without jurisdiction and therefore, a nullity – Dismissed
by Executing Court – Challenged by first respondent u/Art. 227 of
the Constitution – High Court held that the Executing Court was in
error in holding that it lacked jurisdiction to entertain the objection       D
as to the validity of the decree on ground of alleged absence of
territorial jurisdiction – Application raising the objection was
restored to the file of the executing court for disposal – Held:
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
                                                                              E
entertain the suit – 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
consequent failure of justice that an objection as to the place of
suing can be entertained – Both these conditions have to be satisfied
u/s.21, CPC – In the present case, the objection which was raised             F
in execution was an objection to territorial jurisdiction which does
not travel to the root of or to the inherent lack of jurisdiction of a
civil court to entertain the suit – Such an objection would not lie
before the executing court – Executing court cannot go behind the
decree and must execute the decree as it stands – Executing court
                                                                              G
correctly declined to entertain the objection to the execution of the
decree on the ground of a want of territorial jurisdiction on the
part of the court which passed the decree – High Court was in
error in holding that it was within the jurisdiction of the executing
court to decide whether the decree in the suit for partition was passed
                                                                              H
                                   463
464            SUPREME COURT REPORTS                        [2019] 1 S.C.R.


A     in the absence of territorial jurisdiction – Judgment of the High
      Court set aside – Constitution of India – Art.227.
            Allowing the appeal, the Court
            HELD: 1.1 Sub-section (1) of Section 21 provides that before
      raising an objection to territorial jurisdiction before an appellate
B     or revisional court, two conditions precedent must be fulfiled:
            i) The objection must be taken in the court of first instance
      at the earliest possible opportunity; and
            ii) There has been a consequent failure of justice.
C            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.
D     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. [Para 9][469-F-H; 470-A-B]
             1.2 The objection which was raised in execution in the
      present case did not relate to the subject matter of the suit. It
      was an objection to territorial jurisdiction which does not travel
E
      to the root of or to the inherent lack of jurisdiction of a civil court
      to entertain the suit. Such an objection would not lie before the
      executing court. 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
F     passed in the absence of territorial jurisdiction. The High Court
      has manifestly acted in excess of jurisdiction in reversing the
      judgment of the executing court which had correctly declined to
      entertain the objection to the execution of the decree on the
      ground of a want of territorial jurisdiction on the part of the court
      which passed the decree. [Para 14, 15 and 17][475-C; 476-A-B,
G
      C-D]
            Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005)
            7 SCC 791 : [2005] 3 Suppl. SCR 495; Hiralal v.
            Kalinath AIR 1962 SC 199 : [1962] SCR 747; Hasham
            Abbas Sayyad v. Usman Abbas Sayyad (2007) 2 SCC
H
                  SNEH LATA GOEL v. PUSHPLATA                             465


         355 : [2006] 10 Suppl. SCR 740; Mantoo Sarkar v.                 A
         Oriental Insurance Co. Ltd. (2009) 2 SCC 244 : [2008]
         17 SCR 753; Vasudev Dhanjibhai Modi v. Rajabhai
         Abdul Rehman (1970) 1 SCC 670 : [1971] 1 SCR 66 –
         relied on.
         Kiran Singh v. Chaman Paswan AIR 1954 SC 340 :                   B
         [1955] SCR 117 – referred to.
                          Case Law Reference
         [1955] SCR 117                    referred to   Para 8
         [2005] 3 Suppl. SCR 495           relied on     Para 8           C
         [1962] SCR 747                    relied on     Para 13
         [2006] 10 Suppl. SCR 740          relied on     Para 13
         [2008] 17 SCR 753                 relied on     Para 13
         [1971] 1 SCR 66                   relied on     Para 14          D
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 116 of
2019.
      From the Judgment and Order dated 17.07.2018 of the High
Court of Jharkhand at Ranchi in W.P. (C) No. 3298 of 2016.
                                                                          E
     Mukul Rohatgi, Sr. Adv., Samdarshi Sanjay, Shyamal Kumar, Sunil
Tomar, Advs. for the Appellant.
      S. R. Singh, Sr. Adv., Mangal Prasad, Ms. Sunita Pandit, Krishna
Kumar Yadav, Avnish Singh, Ankur Yadav, D. S. Parmar, Ms. Sujeeta
Srivastava, Advs. for the Respondents.                                    F
         The Judgment of the Court was delivered by
      DR DHANANJAYA Y CHANDRACHUD, J. 1. Leave
granted.
      2. This appeal arises from a judgment and order of the High Court
of Jharkhand at Ranchi dated 15/17 July 2018.                             G

         3. The facts lie in a narrow compass:
      On 9 May 1985, a partition suit1 was instituted by Smt. Saroja
Rani, daughter of Late Rai Sri Krishna (since deceased), in respect of
1
    154/1985                                                              H
466                SUPREME COURT REPORTS                         [2019] 1 S.C.R.


A     her 1/4th share in the suit property which comprises of properties at
      Ranchi and Varanasi. The suit was instituted at Ranchi in the Court of
      the Special Subordinate Judge. The defendant in that suit (since deceased)
      filed a petition before the High Court of Judicature at Patna questioning
      the jurisdiction of the Ranchi Courts. The petition was disposed of by
      the High Court on 10 May 1989 with the direction that any objection to
B
      jurisdiction would be decided by the Special Subordinate Judge at Ranchi
      as a preliminary issue. A preliminary decree was passed ex-parte on 13
      June, 1990 granting the Petitioner her extent of 1/4th share in the schedule
      property. A final decree was passed on 5 April 1991 confirming the
      preliminary decree passed on 13 June, 1990.
C            One of the defendants in the partition suit filed a title suit2 before
      the Court of Subordinate Judge, Ranchi. On 22 July 2003, the suit was
      dismissed for non-prosecution. The first respondent filed a title suit3 before
      the Court of Subordinate Judge at Varanasi which was dismissed under
      Order VII, Rule 11 of the CPC on 12 April 2005 on the ground of being
D     barred under Section 21A of the Code of Civil Procedure 1908 (“CPC”).
      The first respondent filed an application under Order IX Rule 13 in respect
      of the title suit filed at Ranchi which was also dismissed as withdrawn
      on 19 February 2008.
             Since the mother of the appellant was alive when the suit was
E     instituted, the claim was confined to a 1/4th share. During the pendency
      of the suit, the mother died. As a result, there was a modification in the
      share of the three sisters at 1/3rd each. On 18 December 2013, the
      Subordinate Judge at Ranchi passed a supplementary final decree in
      view of the death of the mother of the appellant and the first respondent
      on 9 February 1996.
F
             4. On 12 May 2014, the appellant filed proceedings for the
      execution of the final decree at Ranchi.4 On 1 January 2015, the first
      respondent filed an objection under Section 47 of the Code of Civil
      Procedure contending that the decree dated 13 June 1990, the final decree
      dated 5 April 1991 and the supplementary final decree dated 18 December
G     2013, were without jurisdiction and therefore, a nullity. On 10 March
      2015, the first respondent challenged the decree dated 13 June, 1990 in
      appeal under Section 96 of the CPC.5 The appeal is pending.
      2
        114/1998
      3
        176/2000
      4
        5/2014
H     5
        43/2015
               SNEH LATA GOEL v. PUSHPLATA                                     467
           [DR DHANANJAYA Y CHANDRACHUD, J.]

       5. On 10 March 2016, the executing court dismissed the objections       A
of the first respondent under Section 47 of the CPC with the following
observations:
      “The decree holder is entitled to get the fruits of the decree and
      the executing court cannot go behind the decree. When a decree
      is made by a court which has no inherent jurisdiction, an objection      B
      as to its validity may be raised in an execution proceeding if the
      objection appears on the face of the record. Where the objection
      as to the jurisdiction of the court to pass the decree does not
      appear on the face of the record and 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      C
      to entertain an objection as to the validity of the decree on the
      ground of jurisdiction.”
        Aggrieved by the order of the executing court, the first respondent
initiated proceedings under Article 227 of the Constitution of India. The
High Court by its impugned judgment and order came to the conclusion           D
that the executing court was in error in holding that it lacked jurisdiction
to entertain the objection as to the validity of the decree on ground of an
alleged absence of territorial jurisdiction.
      6. The High Court observed that the plea that the decree could
not be executed on the ground that it had been passed by a court which         E
had no territorial jurisdiction to entertain the partition suit could have
been raised under Section 47 of the CPC. The High Court held thus:
      “The executing court fell in serious error in law where it has
      observed that the executing court will have no jurisdiction to
      entertain an objection as to the validity of the decree on the ground    F
      of jurisdiction. Under Section 47 CPC, the petitioner has not
      challenged the validity of the decree on merits, rather the plea
      taken by her is that the decree cannot be executed for it has been
      passed by a court which had no territorial jurisdiction to entertain
      Partition Suit No.154 of 1985.”                                          G
        The application raising the objection was hence restored to the
file of the executing court for disposal.
      7. Assailing the judgment of the High Court, these proceedings
have been instituted.
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468               SUPREME COURT REPORTS                             [2019] 1 S.C.R.


A            Mr Mukul Rohatgi, learned senior counsel appearing on behalf of
      the appellant submitted that an objection to territorial jurisdiction does
      not relate to the inherent jurisdiction of the civil court. Such an objection
      has to be addressed before that court and in the event that the court
      rejects such an objection, it must be raised before the competent court in
      appeal. Consequently, the High Court was in error in directing the
B
      executing court to deal with such an objection. Moreover, it was urged
      that the respondent was aware of the proceedings which were taking
      place, which is evident from the following circumstances:
               (i) The respondent had filed a title suit before the Court at Ranchi
                   which was dismissed for non-prosecution on 22 July 2003;
C
               (ii) The respondent filed a title suit before the Court at Varanasi
                   which was dismissed under Order VII, Rule 11 of the CPC on
                   12 April 2005; and
               (iii) The respondent filed an application under Order IX Rule 13 in
D                  respect of the title suit filed at Ranchi which was also dismissed
                   as withdrawn on 19 February 2008.
            Based on these circumstances, it was urged that the objection
      which has been allowed to be raised in execution is merely an effort to
      delay and obstruct the implementation of the decree which has been
E     passed in the suit for partition.
            8. On the other hand, Mr. S. R. Singh, learned senior counsel
      appearing on behalf of the respondents, has urged the following
      submissions:
               (i) An objection to the lack of territorial jurisdiction is an objection
F                  to the subject matter of the suit and hence of a nature that can
                   be raised before the executing court. In support, reliance is
                   placed on the decisions of this Court in Kiran Singh v Chaman
                   Paswan6 and Harshad Chiman Lal Modi v DLF Universal
                   Ltd.7;
G              (ii) The impugned order of the High Court is an interlocutory order
                   and hence it is not appropriate at this stage to entertain a
                   proceeding under Article 136 of the Constitution of India; and

      6
          AIR 1954 SC 340
      7
          (2005) 7 SCC 791
H
                SNEH LATA GOEL v. PUSHPLATA                                       469
            [DR DHANANJAYA Y CHANDRACHUD, J.]

       (iii) The case of the respondents all along has been that the              A
           property on the basis of which jurisdiction was founded at
           Ranchi did not belong to the common ancestor and in which
           event, the civil court at Ranchi had no jurisdiction to entertain
           the suit for partition.
       9. In assessing the merits of the rival submissions, it would, at the      B
outset, be necessary to advert to the provisions of Section 21 of the
CPC.
       “Section 21(1) postulates that no objection as to the place of suing
       shall be allowed by any appellate or revisional court unless the
       objection was taken in the court of first instance at the earliest         C
       possible opportunity and in all cases where issues are settled on
       or before such settlement, and unless there has been a consequent
       failure of justice.
       (2) No objection as to the competence of a Court with reference
       to the pecuniary limits of its jurisdiction shall be allowed by any        D
       Appellate or Revisional Court unless such objection was taken in
       the Court of first instance at the earliest possible opportunity, and
       in all cases where issues are settled, at or before such settlement,
       and unless there has been a consequent failure of justice.
       (3) No objection as to the competence of the executing Court               E
       with reference to the local limits of its jurisdiction shall be allowed
       by any Appellate or Revisional Court unless such objection was
       taken in the executing Court at the earliest possible opportunity,
       and unless there has been a consequent failure of justice.”
       Sub-section (1) of Section 21 provides that before raising an              F
objection to territorial jurisdiction before an appellate or revisional court,
two conditions precedent must be fulfiled:
       i) The objection must be taken in the court of first instance at the
           earliest possible opportunity; and
       ii) There has been a consequent failure of justice.                        G
       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
                                                                                  H
470             SUPREME COURT REPORTS                             [2019] 1 S.C.R.


A     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.
B            10. The learned counsel appearing on behalf of the respondents
      has submitted that the objection as to the lack of territorial jurisdiction
      was raised in the written statement before the trial court. But evidently
      the suit was decreed ex-parte after the respondents failed to participate
      in the proceedings. The provisions of Section 21(1) contain a clear
      legislative mandate that an objection of this nature has to be raised at the
C     earliest possible opportunity, before issues are settled. Moreover, no
      such objection can be allowed to be raised even by an appellate or
      revisional jurisdiction, unless both sets of conditions are fulfilled.
              11. Learned counsel appearing on behalf of the respondent has
      placed a considerable degree of reliance on the judgment of four Judges
D     of this Court in Kiran Singh (supra).In that case, there was a dispute in
      regard to the valuation of the suit. The issue would ultimately determine
      the forum to which the appeal from the judgment of the trial court would
      lie. If the valuation of the suit as set out in the plaint was to be accepted,
      the appeal would lie to the district court. On the other hand, if the
E     valuation as determined by the High Court was to be accepted, the appeal
      would lie before the High Court and not the District Court. It was in this
      background that this Court held that as a fundamental principle, a decree
      passed by a court without jurisdiction is a nullity and that its validity
      could be set up wherever it is sought to be enforced or relied upon, even
      at the stage of execution in a collateral proceeding. Moreover, it was
F     held that a defect of jurisdiction, whether pecuniary or territorial or whether
      it is in respect of the subject matter of the action, strikes at the very
      authority of the court to pass the decree and cannot be cured even by
      the consent of the parties.
             The Court then proceeded to examine the effect of Section 11 of
G     the Suit Valuation Act 1887 on this fundamental principle. This Court
      held thus:
             “7. Section 11 enacts that notwithstanding anything in Section 578
             of the Code of Civil Procedure, an objection that a court which
             had no jurisdiction over a suit or appeal had exercised it by reason
H
               SNEH LATA GOEL v. PUSHPLATA                                     471
           [DR DHANANJAYA Y CHANDRACHUD, J.]

      of overvaluation or undervaluation, should not be entertained by         A
      an appellate court, except as provided in the section...a decree
      passed by a court, which would have had no jurisdiction to hear a
      suit or appeal but for overvaluation or undervaluation, is not to be
      treated as, what it would be but for the section, null and void, and
      that an objection to jurisdiction based on overvaluation or
                                                                               B
      undervaluation, should be dealt with under that section and not
      otherwise. The reference to Section 578, now Section 99 CPC, in
      the opening words of the section is significant. That section, while
      providing that no decree shall be reversed or varied in appeal on
      account of the defects mentioned therein when they do not affect
      the merits of the case, excepts from its operation defects of            C
      jurisdiction. Section 99 therefore gives no protection to decrees
      passed on merits, when the courts which passed them lacked
      jurisdiction as a result of overvaluation or undervaluation. It is
      with a view to avoid this result that Section 11 was enacted. It
      provides that objections to the jurisdiction of a court based on
                                                                               D
      overvaluation or undervaluation shall not be entertained by an
      appellate court except in the manner and to the extent mentioned
      in the section. It is a self-contained provision complete in itself,
      and no objection to jurisdiction based on overvaluation or
      undervaluation can be raised otherwise than in accordance with
      it. With reference to objections relating to territorial jurisdiction,   E
      Section 21 of the Civil Procedure Code enacts that no objection
      to the place of suing should be allowed by an appellate or Revisional
      Court, unless there was a consequent failure of justice. It is the
      same principle that has been adopted in Section 11 of the Suits
      Valuation Act with reference to pecuniary jurisdiction. The policy
                                                                               F
      underlying Sections 21 and 99 of the Civil Procedure Code and
      Section 11 of the Suits Valuation Act is the same, namely, that
      when a case had been tried by a court on the merits and judgment
      rendered, it should not be liable to be reversed purely on technical
      grounds, unless it had resulted in failure of justice, and the policy
      of the legislature has been to treat objections to jurisdiction both     G
      territorial and pecuniary as technical and not open to consideration
      by an appellate court, unless there has been a prejudice on the
      merits.” (Emphasis supplied)
      12. Dealing with the question of whether a decree passed on
appeal by a court which had jurisdiction to entertain it only by reason of     H
472             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A     undervaluation or overvaluation can be set aside on the ground that on a
      true valuation that court was not competent to entertain the appeal, the
      Court held that a mere change of forum is not ‘prejudice’ within Section
      11 of the Suits Valuation Act. This Court held thus:
            “12. …it is impossible on the language of the section to come to a
B           different conclusion. If the fact of an appeal being heard by a
            Subordinate Court or District Court where the appeal would have
            lain to the High Court if the correct valuation had been given is
            itself a matter of prejudice, then the decree passed by the
            Subordinate Court or the District Court must, without more, be
            liable to be set aside, and the words “unless the overvaluation or
C           undervaluation thereof has prejudicially affected the disposal of
            the suit or appeal on its merits” would become wholly useless.
            These words clearly show that the decrees passed in such cases
            are liable to be interfered with in an appellate court, not in all
            cases and as a matter of course, but only if prejudice such as is
D           mentioned in the section results. And the prejudice envisaged by
            that section therefore must be something other than the appeal
            being heard in a different forum. A contrary conclusion will lead
            to the surprising result that the section was enacted with the object
            of curing defects of jurisdiction arising by reason of overvaluation
            or undervaluation, but that, in fact, this object has not been
E           achieved. We are therefore clearly of opinion that the prejudice
            contemplated by the section is something different from the fact
            of the appeal having been heard in a forum which would not have
            been competent to hear it on a correct valuation of the suit as
            ultimately determined.”                         (Emphasis supplied)
F            The Court disallowed the objection to jurisdiction on the ground
      that no objection was raised at the first instance and that the party filing
      the suit was precluded from raising an objection to jurisdiction of that
      court at the appellate stage. This Court concluded thus:
            “16. If the law were that the decree of a court which would have
G           had no jurisdiction over the suit or appeal but for the overvaluation
            or undervaluation should be treated as a nullity, then of course,
            they would not be stopped from setting up want of jurisdiction in
            the court by the fact of their having themselves invoked it. That,
            however, is not the position under Section 11 of the Suits Valuation
H           Act.”
                 SNEH LATA GOEL v. PUSHPLATA                                        473
             [DR DHANANJAYA Y CHANDRACHUD, J.]

        Thus, where the defect in jurisdiction is of kind which falls within        A
Section 21 of the CPC or Section 11 of the Suits Valuation Act 1887, an
objection to jurisdiction cannot be raised except in the manner and subject
to the conditions mentioned thereunder. Far from helping the case of the
respondent, the judgment in Kiran Singh(supra) holds that an objection
to territorial jurisdiction and pecuniary jurisdiction is different from an
                                                                                    B
objection to jurisdiction over the subject matter. 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.
       13. In Hiralal v Kalinath8, a person filed a suit on the original
side of the High Court of Judicature at Bombay for recovering
commission due to him. The matter was referred to arbitration and it                C
resulted in an award in favour of the Plaintiff. A decree was passed in
terms of the award and was eventually incorporated in a decree of the
High Court. In execution proceedings, the judgment-debtor resisted it on
the ground that no part of the cause of action had arisen in Bombay, and
therefore, the High Court had no jurisdiction to try the cause and that all         D
proceedings following thereon where wholly without jurisdiction and thus
a nullity. Rejecting this contention, a four judge Bench of this Court held
thus:
         “The objection to its [Bombay High Court] territorial jurisdiction
         is one which does not go to the competence of the court and can,           E
         therefore, be waived. In the instant case, when the plaintiff obtained
         the leave of the Bombay High Court on the original side, under
         clause 12 of the Letters Patent, the correctness of the procedure
         or of the order granting the leave could be questioned by the
         defendant or the objection could be waived by him. When he
         agreed to refer the matter to arbitration through court, he would          F
         be deemed to have waived his objection to the territorial jurisdiction
         of the court, raised by him in his written statement. It is well settled
         that the objection as to local jurisdiction of a court does not stand
         on the same footing as an objection to the competence of a court
         to try a case. Competence of a court to try a case goes to the             G
         very root of the jurisdiction, and where it is lacking, it is a case of
         inherent lack of jurisdiction. On the other hand, an objection as to
         the local jurisdiction of a court can be waived and this principle

8
    AIR 1962 SC 199
                                                                                    H
474             SUPREME COURT REPORTS                           [2019] 1 S.C.R.


A           has been given a statutory recognition by enactments like Section
            21 of the Code of Civil Procedure.”
            (Emphasis supplied)
             In Harshad Chiman Lal Modi v DLF Universal Ltd.9, this
      Court held that an objection to territorial and pecuniary jurisdiction has
B     to be taken at the earliest possible opportunity. If it is not raised at the
      earliest, it cannot be allowed to be taken at a subsequent stage. This
      Court held thus:
            “30. The jurisdiction of a court may be classified into several
            categories. The important categories are (i) territorial or local
C           jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over
            the subject-matter. So far as territorial and pecuniary jurisdictions
            are concerned, objection to such jurisdiction has to be taken at the
            earliest possible opportunity and in any case at or before settlement
            of issues. The law is well settled on the point that if such objection
            is not taken at the earliest, it cannot be allowed to be taken at a
D           subsequent stage. Jurisdiction as to subject-matter, however, is
            totally distinct and stands on a different footing. Where a court
            has no jurisdiction over the subject-matter of the suit by reason of
            any limitation imposed by statute, charter or commission, it cannot
            take up the cause or matter. An order passed by a court having
E           no jurisdiction is a nullity.”
            In Hasham Abbas Sayyad v Usman Abbas Sayyad10, a two
      judge Bench of this Court held thus:
            “24. We may, however, hasten to add that a distinction must be
            made between a decree passed by a court which has no territorial
F           or pecuniary jurisdiction in the light of Section 21 of the Code of
            Civil Procedure, and a decree passed by a court having no
            jurisdiction in regard to the subject-matter of the suit. Whereas in
            the former case, the appellate court may not interfere with the
            decree unless prejudice is shown, ordinarily the second category
G           of the cases would be interfered with.”
             Similarly, in Mantoo Sarkar v Oriental Insurance Co. Ltd11,
      a two judge Bench of this Court held thus:
      9
        (2005) 7 SCC 791
      10
         (2007) 2 SCC 355
      11
H        (2009) 2 SCC 244
                  SNEH LATA GOEL v. PUSHPLATA                                      475
              [DR DHANANJAYA Y CHANDRACHUD, J.]

         “20. A distinction, however, must be made between a jurisdiction          A
         with regard to the subject-matter of the suit and that of territorial
         and pecuniary jurisdiction. Whereas in the case falling within the
         former category the judgment would be a nullity, in the latter it
         would not be. It is not a case where the Tribunal had no jurisdiction
         in relation to the subject-matter of claim…in our opinion, the court
                                                                                   B
         should not have, in the absence of any finding of sufferance of
         any prejudice on the part of the first respondent, entertained the
         appeal.”
        14. The objection which was raised in execution in the present
case did not relate to the subject matter of the suit. It was an objection to
territorial jurisdiction which does not travel to the root of or to the inherent   C
lack of jurisdiction of a civil court to entertain the suit. An executing
court cannot go behind the decree and must execute the decree as it
stands. In Vasudev Dhanjibhai Modi v Rajabhai Abdul Rehman12,
the Petitioner filed a suit in the Court of Small Causes, Ahmedabad for
ejecting the Defendant-tenant. The suit was eventually decreed in his              D
favour by this Court. During execution proceedings, the defendant-tenant
raised an objection that the Court of Small Causes had no jurisdiction to
entertain the suit and its decree was a nullity. The court executing the
decree and the Court of Small Causes rejected the contention. The High
Court reversed the order of the Court of Small Causes and dismissed
the petition for execution. On appeal to this Court, a three judge Bench           E
of this Court, reversed the judgment of the High Court and held thus:
         “6. A court executing a decree cannot go behind the decree:
         between the parties or their representatives it must take the decree
         according to its tenor, and cannot entertain any objection that the
         decree was incorrect in law or on facts. Until it is set aside by an      F
         appropriate proceeding in appeal or revision, a decree even if it
         be erroneous is still binding between the parties.
         8. If the decree is on the face of the record without jurisdiction
         and the question does not relate to the territorial jurisdiction or
         under Section 11 of the Suits Valuation Act, objection to the             G
         jurisdiction of the Court to make the decree may be raised; where
         it is necessary to investigate facts in order to determine whether
         the Court which had passed the decree had no jurisdiction to
12
     (1970) 1 SCC 670
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476             SUPREME COURT REPORTS                             [2019] 1 S.C.R.


A            entertain and try the suit, the objection cannot be raised in the
             execution proceeding.”
             15. 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
B     suit for partition was passed in the absence of territorial jurisdiction.
             16. The respondent has filed a first appeal (First Appeal No. 43/
      2015) where the issue of jurisdiction has been raised. We must clarify
      that the findings in the present judgment shall not affect the rights and
      contentions of the parties in the first appeal.
C           17. The High Court has manifestly acted in excess of jurisdiction
      in reversing the judgment of the executing court which had correctly
      declined to entertain the objection to the execution of the decree on the
      ground of a want of territorial jurisdiction on the part of the court which
      passed the decree.
D            18. We have also not found merit in the contention that the
      impugned order of the High Court, being an order of remand, is in the
      nature of an interlocutory order which does not brook any interference.
      By the impugned order, the High Court has directed the executing court
      to entertain an objection to the validity of the decree for want of territorial
E     jurisdiction. Such an objection would not lie before the executing court.
      Moreover, the objection that the property at Ranchi did not belong to the
      common ancestor is a matter of merits, which if at all, has to be raised
      before the appropriate court in the first appeal.
             19. For the above reasons, we allow the appeal and set aside the
F     impugned judgment and order of the High Court. The executing court
      shall conclude the execution proceedings expeditiously. There shall be
      no order as to costs.


      Divya Pandey                                                     Appeal allowed.

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