 Good evening. On behalf of Beyond Laws, KLC, and Vikram and Nesru Sates, we again welcome Mr. S. Somasekhar, a former district judge from Bangalore. And in fact, when we posted on the YouTube that Mr. Somasekhar will be sharing his knowledge, one of the comments received was that the king is back. So we definitely consider him as a king and as usual we are obliged to his family who on the weekends give time to us so that he can share his legal knowledge. I will ask Vikram to introduce the subject of modes of challenge of civil decree. Over to you, Vikram. Thank you, sir. I'm the wrong person to give any introduction for the fact that I've not practiced much on civil front. You said he's absolutely right. He's the king, king of knowledge, king of any particular aspect dealing with law. That simplifies it and there are a lot of fans, fan following. I don't want to come in between that fan following and the speaker. So that over to you, sir. Thank you so much. Good evening, Mr. Vikram. And his knowledge spreading partner, Trivithram and all my good friends, judicial officers and advocates who have joined. I have chosen this subject with a title which may be a little attractive or it may be little confusing also. The reason is every time we have autonomy it used to be a specific provision of the civil procedure code or evidence set with the title. Here, certainly I will be referring to the provisions of civil procedure code and some of you may be surprised that it will also be referring to provisions of the evidence set in this redot. It is not one particular section in the civil procedure code or any particular order. I'll be referring to a few sections in the section portion. One or two orders in the order portion. Some sections of the Indian evidence at 1872, which from 1724 would be Bharatiya Sashtya Hanema of 2023, which incidentally has not made much inroads into the Indian evidence at 1872, except that sections are renumbered, provisos are given some subsections and all that. One easy way to look at rather find out the relevant provision in the new enactment is subtract 2. If it is 5 in the act of 1872, it is 3 in 2023. But act of 1872 ends with 167. Since some exceptions, explanations have all been made independent sections, it comes to 170. The reason is in the Indian evidence at 1872 to bring it in tune with information technology and certain presumptions regarding electronic documents were added by way of an amendment. Those things have all been given an independent number so that the new enactment will have 170 sections. It is totally beside the subject, something collateral to the subject, because you will be hearing this word collateral from me at least once or twice during today's presentation. The audience generally used to be jury or advocates, I believe so. Some of them will be practiced in the trial courts, most of which which I tell will be relevant to their functioning in the trial courts. For a period of time, they may also start practicing the appellate courts, now also they will be going. It might be of some help to them, not in detail as to the regular procedure regarding the appeals and other things. There is something there which I am relating to the subject that I am discussing today. The title of the subject is modes of challenge to a decree. So, first we should know what a decree is, what are the different kinds of decrees, then different modes of challenging a decree, different modes of challenging, different kinds of decrees. That would be the broad outline. I know I am speaking to an audience which consists of some experienced judicial officers and experienced advocates. But as I have been always telling my target through these, the other members of the bar, I know to take them through some provisions of the civil procedure code only to enable them to know what actually I am trying to ultimately convey to the entire audience. Please have a look at the definition of decree in section 2 to CPC. I request the younger members of the bar to give complete attention to what I am telling. Decree means the formal expression of an adjudication which so far as the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. This is a definition which you have got by road. In substance, a decree is one which is passed after adjudication, after framing issues, after trial takes place and finally there is a determination of the list between the parties. It may be either preliminary or final. What is that preliminary and final is also explained in the explanation to section 2, subsection 2. A decree is preliminary and further proceedings happen to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. For my today's presentation, there is no need to go into this detail. But for a limited purpose, you should also know that there is what is known as a preliminary decree then followed by a final decree in certain kinds of suits. More particularly, this partition suits our possession where mean profits is sought, dissolution of partnership across administration and a few other provisions. All of them we will get in order 20 CPC. I did not read the main part of subsection 2 of section 2 in entirety. I stopped at the word preliminary final. It shall be deemed to include the rejection of applied and the determination of any question within section 144. So now, a decree is something which is passed after adjudication of the dispute between the parties. It includes a rejection of a applied under order 7 rule 11 CPC. Then, determination of question within the beginning of section 144. For those who are uninitiated, 144 provides for a remedy by way of restitution. One simple example will be sufficient. A decree for eviction is passed either ex parte or after contest. The plaintiff executes the decree and takes possession through the court. The defendant either prefers an appeal under section 96 rapid order 41 rule 1 CPC or he may file a petition under order 9 rule 13 CPC for setting aside the ex parte decree. Both the remedies are available. You will soon discover that section 96 CPC also provides for an appeal against an ex parte decree. If the trial court which has passed the ex parte decree sets aside that ex parte decree under order 9 rule 13 or the appellate court in an appeal under section 96 rapid order 41 sets aside the ex parte decree. The matter has to be through the matter has to go to the trial court. Trial has to take place. In the meantime, plaintiff decree holder would have taken possession of the property through the agency of the court. So, till that appeal till the suit is disposed of on merits, defendant can be put back in possession. He has a right. He has a remedy under section 144 CPC restitution. He will be put back to the position in which he was before the decree came to be passed. So, the court passes an order on a petition under section 144 CPC that order also amounts to a decree. So, what is its implication? So, number one, if it is a decree on contest a regular appeal lines under 96 or 41, if it is rejection of client under order 7 rule 11, since it amounts to a decree and appeal lines, then if an order is passed in a proceeding under section 144 CPC that also amounts to a decree and therefore an appeal lies. What is not imploded in the definition of the decree is stated in clause A and B. It is not necessary for today's purpose. Now, section 2, subsection 2, though it gives the definition of the term decree in somewhat declaratory language and also inclusive language, still is incomplete. There is some there are some other provisions in the civil procedure code which also indicate to us that the orders passed there under would also amount to a decree. One such is order 21 rule 58 sub rule 4 CPC 21 rule 58 sub rule 4 CPC. For those who have some knowledge of the execution proceedings, in execution for a decree, in execution of a decree for money, the property of the judgment order can be attached and sold. So, the proceeds of the sale, the digital amount would be given to the decree holder. Now, of course, a detailed procedure is contemplated for that attachment and the sale and that requires a separate session. I am not touching upon it. When the property is attached, some person may make a petition which is called laying a claim or an objection to the attachment saying that the property was not liable to attachment. Either on the ground that the property did not belong to the documentator, but it belong to him that is the person who has filed the petition or the property was not liable to attachment at all for some reason. It is a detailed adjudication. After that adjudication an order is passed. What is that order that is passed that is contained in sub rule 3 of rule 58 of order 21. Upon the determination, the questions referred to in sub rule 2, the court shall in a thought and such determination, allow the climber objection and release the property from attachment, disallow the climber objection, continue the attachment subject in a market, etc. pass such order. So, these are the various types of orders which the executing court can pass in a proceeding for adjudication of a claim to attachment or an objection regarding attachment. What is the effect of that order that is contained in sub rule 4, where any climber objection has been adjudicated upon under this rule, the order made there on shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree. Therefore, an adjudication order 21 rule 58 also amounts to a decree and an appeal lies under section 96, red with order 41 CPC. For those who are not exposed to this, let me make it very clear on appeal under order 43, that is section 104, red with order 43 does not climb. See, order 43 contains a list of orders which are appealable, they are not decreased. So, 21 rule 58, it is an order which the court passes, but that order has the force of a decree and therefore an appeal lies under section 96, red with order 41 CPC. As something in connection with this, though not totally relevant to today's topic, which also may be noticed by me now, kept in view by the participants. Now, sub rule 1 of rule 58 provides that objection can be raised for this attachment or a claim can be preferred. There are two riders for this. If as on the data the application filed for rising the climb or objections, if the property attached had already been sold, the court cannot entertain a petition for attachment, because the property is already sold or the climber objection is unnecessarily delayed or designately delayed long after the attachment application is filed. In such an event, the court will not entertain it, but the threshold itself, the court will reject the application. There it does not amount a decree. Then once the court entertains the climber objection and holds an adjudication under sub rule, holds an adjudication as provided by sub rule 2, passes an order under sub rule 3, that will have the effect of a decree under sub rule 4. Well, of course, if under as per sub rule 1 proviso, the application is not entertained at the threshold itself, rejected at the threshold. There is still the remedy for the attribute person to file a separate suit that is followed by sub rule 5. They are not interested in that today. So, therefore, an adjudication under order 21 rule 58 amounts to a decree and an appeal lies. Then have a look at order 21 rule 103. Now, there is a decree for possession or eviction. A land law file says suit against the tenant for eviction or if the demiser premises that is the premises which is let out is covered by the provisions of the local rent laws. Then an eviction petition under that law or maybe in some states, there was rent ads also provided for a suit there under in such an event or in a regular suit for possession based on title or whatever it is or employer possession. If a decree is passed for possession and some obstruction is passed to the decree holder at the time of taking possession or as I told you in pursuant to a decree for money, the property of the gentleman that can be attached and sold, the court will hold a public auction. A person will buy in the public auction. He is called the auction purchaser. If he is obstructed in taking possession of the property, then he and the decree holder who has obtained a decree for possession or eviction can maintain an application under rule 97. Similarly, pursuant to such a decree for possession file execution, somebody other than the getment that is dispossessed, he has also a remedy under 21 rule 99 to make an application. This is as per the statutory provisions. Of course, decisions are a legion explaining the position in a totally different way. Let us not go into those details. Now, if it is an application under rule 97 by a decree holder for possession or by an auction purchaser, the adjudication is done under rule 98. If it is an application by the person who has been dispossessed and he makes the application under rule 99, adjudication is done under rule 100. What are the questions the executing court will determine during the course of such adjudication are contained in rule 101. 102, there is no need for me to speak to a courier. Have a look at 103, where an application has been adjudicated upon under rule 98 or rule 100. The order made there on shall have the same force and we subject to the same conditions as to an appeal otherwise as if it were a decree. Therefore, if an adjudication is made in a proceeding under 21 rule 97 or rule 99, it amounts to a decree and an appeal lies under section 96 by the order 41 CPC. One judicial officer who always joins online, on time, is here. In fact, he had brought to my notice a decision of Pitharnadaka High Court. The proposition is this, if a decree for eviction is passed in a proceeding under the Rent Act and the decree holder files an execution petition and if during the pendency of the in the during the course of that execution, some application is filed under rule 97 or rule 99, an order is passed though it has the effect of a decree on appeal under section 96 of CPC, read with order 41 does not lie. A revision has to be preferred under the Pitharnadaka Rent Act. That is the legal position as I said one officer whom I see in the video got me that decision, the decision of the Pitharnadaka High Court. May be the position may be different or the same thing in other states I am not aware of it. So, that may also be kept in view. So, therefore, there are demonetries. One rejection of a plaint, determination of a question under 144, determination of a question under rule 25, determination of a question under rule 21, 97, 99, under 103, it amounts to a decree. Then we have judgment on basis of admissions made by the defendant. Just have a look at order 12 rule 6. I think on some other occasion I have spoken about it, I am not very sure whether I spoke on this platform or this. Please have a look at order 12 rule 6. Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any state of the suit either in the application of any party or of its own motion and without waiting for the determination of any other questions between the parties, may such order or give such judgment as it may compete having the orders of admissions. Sub rule 2 is important for our purpose. Whenever a judgment is pronounced under sub rule 1, a decree shall be drawn up in a thousands of the judgment and the decree shall bear the date on which the judgment was pronounced. I am referring to this provision again when I take up section 96. For the present you should be very clear about this. A judgment on admission is not like a transcendent decree against which an appeal can lie or it is not a compromised decree. What happens usually is the entire claim may not be admitted by the defendant. Maybe in a suit for recovery of friend, he may admit the rate of friend or he may deny the dispute the rate of friend and say this is the rate of friend. If friend is calculated this rate, this will be the amount due from me. Certainly I have due some amount. Well, I am prepared to pay it. Based on that admission there could be a decree or in any money suit. If the defendant admits they claim to some extent, there can be immediately a decree there. Then in a partition suit, some properties are claimable to be the self-acquisitions of the defendants. Some are admitted to be joint family properties. They do not set up a prior partition. They even go to the extent of saying that we have no objection to pass a decree in respect of these items which we admit as joint family properties. They may also say we are prepared to pay a court fee. Our share may also be demarcated. In such an event there will be a decree on admission or a judgment on admission based on undisputed claims and facts and about there will be another decree after contest. Two degrees are permissible in such a situation. So, therefore, a decree for admission I mean a judgment on admission the rule says it is a judgment on admission and after the judgment the reason is this according to the plaintiff it is a clear admission made by the defendant. According to the defendant it is not an admission at all. I have got something else to say. It is not an unqualified admission. It is not a clear admission. The case lies to the effort that unless that admission is unequivocal and very clear unambitious then only the court path can pass a judgment followed by a decree under order 12 rule 6. Therefore, though not a very detailed adjudication some adjudication has to be done even when the court passes a judgment under order 12 rule 6. In which even a decree is done therefore an appeal lies. This is very very important in the context of the next provision which I am referring to. Please go to section 96 CPC. It is the substantive provision regarding appeal. Before that I want to tell something. Whether it is an appeal under the provisions of the civil procedure code or the criminal procedure code or any special enactment income tax at whatever enactment is unless the statute provides for an appeal there is no right of appeal whereas a plaintiff has a right to file a suit if it is a dispute of a civil nature as covered by section 9 CPC. No authorities require to say that a civil suit lies but when it comes to an appeal there is no question of entertaining an appeal in the interest of the district. So, here no remedy the trial court has passed an order and on the order what shall I do nothing. The statute should provide for an appeal so to on the criminal side and the criminal procedure code against which times of orders or judgments an appeal lies that is provided. The number of special enactments also there is a right of appeal there is a right of provision. So, an appeal is a right created by a statute. There is nothing like entertaining an appeal in the interest of justice R under 151 CPC, R under article 21 and all that nothing. A statute should provide for it. Now, the substantive provisions regarding an appeal against a decree and I had given the definition of the decree is section 96 CPC. Just have a look at it. Appeals from original decrease. Save where otherwise expressly provided in the body of the store or by any other law for the time being in force. An appeal shall lie from every decree passed by any court. Though normally the apparent says it is an appeal against the judgment and decree passed by the trial court in such and such a case. Just also we also say it is an appeal against the judgment and decree passed in such and such a case by such and such a court. Technically an appeal lies under section 96 CPC against a decree. From appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decisions of such court. It would be of some interest to those who had not discovered it so far that the civil procedure court nowhere says to which court the appeal lies. It is the local civil courts acts which tell us which court at which court the plaintiff or the defendant has to appeal. In Tarnataka we have the Tarnataka civil courts act of 1964. Civil procedure does not say which is to that which is that court where an appeal has to be filed. That's why it says to the court authorized to hear appeals. Then an appeal may lie from an original decree passed by the expert. So there are two remedies for a defendant who has suffered an exported decree. Why should I say who has suffered an exported decree as though the court has committed a mistake in passing an exported decree. If someone says duly certainly has not come it is not a court's mistake to say that. So therefore there is a decree against him and exported decree. Though normally say he has suffered a decree. I don't agree with that. There is a decree against him. It may lie from an original decree passed expert. He has got two remedies. One to file a petition under order 9 rule 13 CPC for setting aside that exported decree. Another remedy is sub rule 2. Of course he can't opt both of them. Only one of them is also provided. Then sub rule 4, then sub rule 3 or the sub section 3. No appeal shall lie from a decree passed by the court with the consent of parties. This is important for us. On the last occasion when I spoke about order 23 on this platform I did refer to this but today in a different context I am referring to it. Of course for a very long time I had a view that a consent decree is not the same thing as a compromise decree. Even to this day I hold the view personally but I am bound by judgments of the Supreme Court which have taken the view that a compromise decree is also a consent decree and therefore an appeal does not lie. This I am telling let us not confuse ourselves with the provisions of order 12 rule 6 where a decree is passed on admission rather a judgment is passed on admission followed by a decree with a consent decree referred to in 96 3 or a compromise decree under order 23. See as I told you already under order 12 rule 6 to pass a judgment on admission it must be an unequivocal, clear, unambiguous admission. The court should be satisfied about it. Then only it can pass a decree on a judgment on admission then draw a decree. So, if the defendant says that there is no such admission at all which empowers the court to pass a decree or entitles the plaintiff to have a decree on admission, well if the court is also satisfied it cannot pass a decree on admissions. So, therefore it cannot be said to be a consent decree in this context. So, it will be a decree against which an appeal lies under section 96 CPC graduate order 41. But if it is a decree by consent or by compromise, statute says no appeal lies. Then subsection 4 no appeal shall lie except on a question of law from a decree in any suit of the nature cognizable by the court of small causes when the amount of the value of the subject matter of the original suit does not exceed 10,000 rupees. To my knowledge in Karnataka under the Karnataka small causes court said the remedy by way of revision is preferred for the person who against whom a decree is passed. There is no appeal there under the Karnataka small causes court said position may be the same elsewhere also. Now there are other things relating to appeals that is not the topic for discussion here. Now what does it mean? It may be from a reading of these various provisions. We have seen a decree is passed followed by been preceded by a judgment on adjudication. This is the usual thing that happens. If a plaint is rejected in order 7 rule 11, that's also a decree. If a petition is disposed of under section 144, it is also a decree. An adjudication done under 21 rule 58 is also a decree. An adjudication done under 21 rule 97, 99 is also a decree. Then judgment or admissions under order 12 rule 6, they are on decrees. So I have now told what are the different categories of decrees, a compromise decree. I'll come to it at the end. Now we will now see different modes of challenge in this decree. So if it is a decree on adjudication or if it is a decree when the plaint is rejected under order 7 rule 11 or a question is determined under section 144 or adjudication under 21 rule 58 or under 21 rule 97, 99 or under order 12 rule 6. The mode of challenging it is by way of an appeal under section 96 read with order 41. In Karnataka, we call it as a regular appeal. Some states they use it, some states they have got a different denominator for all that, whatever it is, that is why I'm avoiding the word regular, which I used to use regularly when I was speaking to officers and advocates from Karnataka. So it is not, I don't say it as regular appeal because different states that may have different expressions. It is an appeal under section 96 read with order 41. Then I told you there can be a preliminary decree and also a final decree. A person agreed by a preliminary decree has to challenge it by way of an appeal under section 96 read with order 41. He does not choose to challenge that preliminary decree. Then a final decree is passed. An appeal lies against the final decree also. An appeal lies against the preliminary decree. An appeal lies against the final decree. An appeal under 96. If the person agreed by the preliminary decree does not choose to challenge the preliminary decree, he cannot after the final decree is passed question the preliminary decree. So, preliminary decree has to be challenged immediately thereafter within the period of limitation provided by the limitation act. If he chooses not to challenge the preliminary decree, then he can't wait. All right. Let there be a final decree. I'll challenge both the preliminary decree and the final decree move. That cannot be done. Where will you get it? You will get it in section 97 CPCs. Where any party agreed by a preliminary decree passed after the commencement of this board does not appeal from such a decree. He shall be precluded from disputing his correctness in any appeal which may be preferred from the final decree. I repeat, the person agreed by the preliminary decree has to challenge it. If he does not choose to challenge it, thereafter a final decree is passed. He cannot attach the preliminary decree in an appeal against the final decree. He has to confine his doubts only to the mistake in the final decree not in the preliminary decree. So, modes of challenge in the decree are contained in section 96. Then we have a compromise decree or a decree by consent under 96-3. It's also a decree. There is a bar under order 23 rule 3A CPC for filing a suit to set aside a compromise decree. No appeal lies under section 96 because 96-3 is clear. No appeal lies under section 104 in order 43. What then is the remedy of a person who wants to challenge the compromise decree? You will wait for some more time. Last time I have covered it but subsequent to my presentation about two months back on this subject, there are a few more decisions because I checked it from my notes. Those decisions may be were not yet reported or I had not noted them or I did not bring them to your meetings. Anyway, there's no change in the leader position. I will speak about challenging a compromise decree at the end. Since I have spoken about temperature order 23, I did not think it necessary again to deal with this but anyway I thought that I should also deal with it that I have resolved the end. Now, I am on a different point. There is what is known as a valid decree and a void decree. This is extremely important. Please give full attention to what I am telling you. A decree is valid, a decree is also void. What is the remedy to avoid a valid decree? Appeal and appeal. There will be some situations. A suit can also be filed that I will tell later. If it is a void decree, what is the remedy? I will take it step by step. To understand this, we need to know one concept. Error in jurisdiction and error of jurisdiction. Error in jurisdiction and error of jurisdiction. What is this? A court has got jurisdiction to decide a matter. It could be territorial. It could be pecuniary. It could be jurisdiction or the subject matter of the suit. In exercise of its jurisdiction, in a I mean exercise in that jurisdiction, it passes a decree. Certainly one person is agreed. He has a right of appeal. He may be able to convince the appellate court that the decree is wrong. An error is committed by the trial judge. But the decree is not void. It is a valid decree till it is set aside. A person suffers a decree. It is a valid decree. It may be an incorrect decree in his view. But his remedy is to challenge it. Therefore, so long as a judge has the jurisdiction to decide a matter, the law is he can decide it rightly or he can decide it wrongly. It does not give a license to the judges to deliberately decide it wrongly. But that is precisely the reason why there is an appeal. So, so long as a court has jurisdiction to decide a matter, there can be an error in it. It is thought error in jurisdiction. If there is an error in exercise in the jurisdiction and a decree is passed, it is still a valid decree. It is not a void decree at all. To challenge that valid decree which in the view of the agreed person is not a current decree. Current decree may be one thing a valid decree is developed. He is not a current decree. His remedy is to challenge it by way of an appeal. But what is the position with regard to a void decree? For that you should know what that void decree is. Before that, there is an interesting passage in Sartor's Evidence Act that I would read it. I have taken it from the Law of Evidence by Sartor, Volume 1, 16th edition, 2007 edition. From Law of Evidence by Sartor, Volume 1, 16th edition, 2007. This is revised and enlarged by Sudeep Sartor and V. R. Manohar. This particular edition is revised and enlarged by Sudeep Sartor and V. R. Manohar. I am deliberately giving these details because there are number of puts on Evidence Act by Sartor of different names. The one which I am now referring is that authored by that stalwart Sartor which is revised and enlarged in 2007. In page 965, this book dealing with section 44 of the Evidence Act about which I will speak with some more details. This is what is stated. Want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. This is very important. Want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. So, therefore, want of jurisdiction, if an error is committed, it is not an error of jurisdiction. Outside your jurisdiction, you have entertained a matter, you have committed an error. Even if the judgment is otherwise valid, all points are considered, but it is given by a court which had no jurisdiction at all. It is still a void degree or invalid degree. But if you have got jurisdiction and even if you pass the wrong order, it is still a valid degree till it is not set aside. Want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If a court has jurisdiction to take partisans of any matter before it, but decides it erroneously or exercises its jurisdiction irregularly, its judgment is not nullity till it is set right by an appropriate proceeding in a proper court. Jurisdiction does not depend on the correctness of a decision. Jurisdiction depends upon the statutory provision. It says, well, this court has got jurisdiction to enter into that matter. What if the court does not have jurisdiction? This requires some deliberation. We will deal that. For this, you need to have a look at section 21 CPC. Objections to Jurisdiction. No objection as to the place of suing shall be allowed by any appellate or revisional court unless that objection was taken in the court of first instance at the earliest possible opportunity and in all cases the issues are settled, at or before such settlement and unless there has been a consequent failure of justice. Therefore, want of territorial jurisdiction that is place of suing does not render the decision invalid. The defendant, if he wants to raise the question of want of territorial jurisdiction has to raise it immediately. The time limit is if it is a case where issues are required to be framed, where issues are settled at or before such settlement. Thereafter, he can't raise it and in the appellate court, a contention cannot be taken that the trial court did not have territorial jurisdiction. Please be very clear about this. It is not an invalid decree. A decree passed by a court which does not have territorial jurisdiction is not an invalid decree. The appellate court cannot reverse the decree of the trial court only on the ground that the trial court latter a territorial jurisdiction. One exception is thought out unless there has been a consequent failure of justice. It is a very, very rare situation. It is very difficult to demonstrate. Such a situation is very rare. The usual ground there is a failure of justice. The person who challenges a decree on the ground that the trial court latter territorial jurisdiction will have to clearly demonstrate and establish before the appellate court what is that failure of justice which has ensued on account of the trial court assuming territorial jurisdiction when it did not have very rare situation. So, we can safely proceed at the basis want of territorial jurisdiction is not a ground available to the appellate is not a ground available to the appellate judge to set aside the decree. Subsection 2. No objection as to the competence of a court with reference to the pecuniary limits of the jurisdiction shall be allowed by any 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. So, section 1 and 2 they are similarly verdict. Subsection 1 refers to territorial jurisdiction. Subsection 2 refers to pecuniary jurisdiction. So, the net effect of section 3 it refers to the competence of the executing court let us not worry about it. So, 21-1 and 21-2 make it very clear is a trial court lack either territorial or pecuniary jurisdiction the judgment is not void, judgment is not a deli it is still a valid decree unless it is set aside the appellate court cannot reverse that degree only on the ground that the trial court latter territorial or pecuniary jurisdiction. Then go to rule 21-1 section 21-1 no suit shall lie challenging the validity of a decree passed in a former suit between the same parties or between the parties under whom they are any of them claim litigating under the same title on any ground based on an objection as to places showing. Of course, there is a principle of prejudicator secondly it says merely because the former court which passed the decree did not have territorial jurisdiction only on that ground the a second suit will not lie that is clear from section 21-8 thus far there is no problem. A slight problem we find in the land weight of section 99 CPC. 21 I made it clear 99 have a look at 99 99 you find points at place in part 7 dealing with appeals 96 97 98 98 is not considering 93 let us 99 let us read it no decree shall be reversed or substantially varying nor shall any case be remanded in a beam or not out of any misjoiner or non-joiner of parties or causes of action or any error defect or irregularity in any proceeding in this suit not affecting the merits of the case or the jurisdiction of the court. Proviso is not necessary it speeds up the effect of non-joiner if necessary party. 21 1 and 2 will tell us that the appellate court cannot interfere in the red military trial court only on the ground that the trial court lack of territorial or pecuniary jurisdiction. If we just read section 99 CPC without reading section 21 CPC some provision of the court we had and some reported decisions we may be justified in concluding well in the trial court lack of jurisdiction the appellate court can interfere with that this position has been explained by the supreme court about which I will tell you now in the state of Karnataka we have the Karnataka court phase and suits valuation act there section 51 would say that the appellate court cannot reverse the decision of the trial court only on the ground that it lack of pecuniary jurisdiction and that section starts the non-abstanted class saying and not withstand anything contained in section 99 CPC. Therefore want of pecuniary jurisdiction will not empower the appellate court want of pecuniary jurisdiction on the part of the trial court will not empower the appellate court to reverse the decree in view of that provision because maybe there are certain provisions in other states also very shortly I am referring to a very leading segment of the supreme court on that point that will make the position clear not withstanding anything contained in section 99 CPC that is how it says of course it refers to pecuniary jurisdiction but what is the position with regard to the territorial jurisdiction. We have a very beautiful decision of the supreme court which all of you will take paint to read at one point of time of the year. We have this beautiful judgment of the supreme court in Kiran Singh versus Chaman Pasha. Kiran Singh versus Chaman Pasha reported in AER 1954 supreme court 340 AER 1954 supreme court 340. This is a judgment by four judges of the supreme court. I am going to find out how even number of judges would be on the larger bench also because two we have understood then anything larger is odd number three five seven nine eleven thirteen like that but I don't know how at one point of time there will be even number of judgment judges on the bench at the supreme court even though it was not a division bench very eminent judges of those ester years BK Mukherjee, Vivian Bose, Ghulam Hasan and Venkat Ramayana. The judgment is by Venkat Ramayana speaking of Vivian Bose whenever you get an occasion to read any of his judgments either in civil law or criminal law please read it it will be really enlightening. One particular judgment in the context of section 300 IPC Talpabal homicide and murder of course I am going to find out the corresponding provisions in this new enactment something totally different. Now see this was a case where the question was whether the trial court which passed the decree had pecuniary jurisdiction of course the batterator the supreme court supreme court in 1953 so obviously it should have been the trial court should have suit should have been entrant gone back in the trial court and all that. One contention that was urgent before the supreme court was that the trial court later pecuniary jurisdiction if that was the valuation for purposes of filing the suit appeal should have been filed for a different court appeal has been filed in some other court because the valuation was something more and all that. So an argument was canvassed saying that it is a nullity judgment is a nullity because the trial court which passed the decree had no pecuniary jurisdiction. I am repeatedly telling the relevant provision of the Karnataka court fees act speaks about pecuniary jurisdiction obviously court fair cannot speak about territorial jurisdiction. It starts with a non-abstracted clause such notwithstanding engine containing section 99. 99 at first plus use an indication that want of jurisdiction is a drought which appellant can set up with the appeal court. The appellate court can reverse it. But what is the effect of 21 99 11 all those things will have to be 51 of these. In some other states it will be different provision. In this 1954 supreme court the corresponding provision of that state enactment was section 11 of the court fees act. Please hear me this. The answer to these expectations must depend on what the position in law is when a court entines a suit or an appeal over which it has no jurisdiction. And what is the effect of section 11 of the suits valuation act is on that position. Officers and lawyers from Karnataka do not confuse this section 11. Section 11 here refers to pecuniary jurisdiction whether the appellate court can reverse the judgment of the trial court only on the ground of point of pecuniary jurisdiction. Section 11 of the suits valuation act of that state is not in paramateria with section 11 of our act. Section 11 of our act deals with a different thing. The preliminary issue has to be trained has to be framed whenever a question of insufficiency of court fair want of pecuniary jurisdiction is raised. Provisions corresponding to section 11 of that act is 51 of the Karnataka court fees and suits valuation act. The answer to these contentions must depend on what the position in law is when a court entertains a suit or an appeal over which it has no jurisdiction. And what the effect of section 11 of the suits valuation act is on that position. It is a fundamental principle well established that a decree passed by a court without jurisdiction is an LED and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at this stage of execution and even in collateral proceedings. Execution I will tell you collateral proceedings also I will tell you because I am very much interested in this collateral proceeding. A defect a defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect to the subject matter of the action strikes at the very authority of the court to pass any decree and such a defect cannot be viewed even by consent of parties. Now this particular line in this judgment gives an indication that is the trial court lacks territorial or pecuniary jurisdiction or jurisdiction of the subject matter of the suit the judgment is an LED. I may tell you here in some commentary on CPC only this slide found in this judgment is extracted and it is likely to lead the redustriethan where on the opinion or a wrong conclusion that want of territorial or pecuniary jurisdiction also renders the judgment an LED. But let us take pains to read the whole judgment or at least relevant portions. Is the question now under consideration felt to be determined only at the application of general principles down in the matter? There can be no doubt that the district court of Mongir was quorum non-judice and that its judgment and decree would be an LED. What that quorum non-judice I will tell you? The question is what is the effect of section 11 of the suits valuation act on this position? Then reference is made to section 11 of the of the suits valuation act of that state. Then 578 of the civil procedure court may be some amendments in that state. Then 99 CPC. After examining all this, this is what the Supreme Court has said. Please hear me very carefully. Don't be carried away by these lines which you find in one pair of the judgment. I am not giving the para number because I have not taken it as this CPC I mean I have taken it from some you internet. Therefore, the para numbers may not tally in that person. Anyway, I am reading para 6. Here it says the policy underlying section 21 and 99 of the civil procedure court 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 render, it should not be liable to be reversed purely and technical grounds unless it has resulted in failure of justice and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an appellate court unless there has been a prejudice on the merits. So, therefore, this judgment makes it abundantly clear when we read it very carefully that want of territorial or pecuniary jurisdiction on the part of the trial court will not render its judgment and decree and let us be very clear about this. Let us not be under the impression that it is a decision of 1954 and that is not the law now. We have a force of decisions on that point, time is not sufficient for me to refer to all those decisions, neither there is any need. Having started from 1954, I will end up with 2019 end up only on this point not the session 2019, 3 SCC 594, 2019, 3 SCC 594, Snehalatha Goyal versus Pushpalatha and others, Snehalatha Goyal versus Pushpalatha, because this judgment is by representing CJI as it then was that device in which you would. The decision in this torrent scene which I cited now has also been referred to in this judgment. Section 21 CPC has been referred to and this is what the Supreme Court observes. This provision that is section 21 which the legislature has designately adopted would make it abundantly clear that our 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 this suit. What is that inherent jurisdiction? Just wait, I will make a pause in the reference to section 9 and tell you. So, want of territorial or pecuniary jurisdiction does not go to the root of the matter. 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, there is a consequent failure of justice 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. Then after referring to Kiran Singh, this is what the Supreme Court says. This the court in Kiran Singh 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 rising an objection to jurisdiction of that court at the appellate stage. The court concluded thus I have already read out that portion from the Kiran Singh. Then this is what the Supreme Court in Sneha says. Thus, where the defecting jurisdiction is of a time which falls within section 21 CPC, that is both pecuniary or territorial or section 11 of the suit valuation act, an objection to jurisdiction cannot be raised except in the manner and subject to the conditions mentioned there under that is there should be a failure of justice. Far from helping the case of the respondent, the judgment in Kiran Singh holds that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction of 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 the civil court to entertain this suit. As I said, there are number of decisions between 1954 and 2019. Well, the legal position is this. We have three jurisdictions. CPC tells us about territorial jurisdiction contained in section 16 to 20. Want of territorial jurisdiction, what is its effect is contained in 21-1. CPC does not actually deal so much with the pecuniary jurisdiction. Except section 15, it says all suits will have to be filed in the court of the lowest grade competent to try it. That's all. It is the local civil court sat which deal with the pecuniary jurisdiction of the court and also territorial for that matter. There is another jurisdiction called inherent jurisdiction or jurisdiction over the subject matter is suit. When I say inherent jurisdiction, it is not inherent power center 151. It is inherent jurisdiction. I need to spend some time on this. Please give me a patient hearing from this. This is very important because the whole purpose of my today's presentation is to speak on that though incidentally taking you directly to that would not help the youngsters. Therefore, I had given some preliminaries. What I am now telling is a very particular because this is an occasion where you will know what actually the correct legal position is. Those of you are practicing the civil courts. Some junior judicial officers were joined the judiciary recently. Please give full attention to what I am telling. Now, what is this want of inherent jurisdiction or jurisdiction over the subject matter is suit. In the law college, we have been told there are three kinds of jurisdiction, territorial, pecuniary and jurisdiction over the subject matter. There is some indication of it from section 9 CPC. Let us have a look at it. The court shall subject to the provisions here in content have jurisdiction to try all suits of a civil nature accepting suits of which their partisans is their expressly or impliedly bought. Two explanations are there. What is a suit of a civil nature? I mean certain kinds of suits. They are also deemed to be suits of civil nature. We know by now matters relating to property, recovery of money, specific performance, partition, we generally take it as suits of civil nature. Section 9 says if it is a dispute of a civil nature, certainly a civil court has got jurisdiction. The legal position is very clear that no authority is required to say that the court has got jurisdiction because it is presumed. We have a very beautiful judgment of justice when Heda is on the point. AER 1969 Supreme Court court, page 78. AER 1969 Supreme Court, 78. Pula boy was sustained. A very beautiful judgment even to this day that is the law. We learn the basics of the judgment. So, the effect is there is no question. So, no authority is required to say the defendant says well this court has no jurisdiction. It is not for the plaintiff to show that it has got to do what has got jurisdiction because it is a dispute of a civil nature. Court cannot also say where I have got jurisdiction. It is for the defendant who raises it. It is the legal position. But an exception is started out in section 9. Subject to the provisions here in contact. Now, section 10 says if a suit is already pending in respect to the same subject matter between the same parties where issues are directly and substantially the same, then the subsequent suit has to be stated. Section 11 interprets the principle of restudicator. If there is a former suit it is already tried and subsequently another suit is filed by the same parties, same subject matter. The subsequent suit will not like section 11 restudicator. So, these are subject to the provisions here in content section 10 and 11. Then section 12 preclusion. I am not spending time on that today. These will not subject to those things. All other suits of a civil nature are maintainable in a civil court. Accepting suits of which their thought dimensions is either expressed clear, impliedly part. We have forced of special enactments which either expressly take away the jurisdiction of a civil court or impliedly take. For example, where the industrial is good sat. Well, it does not expressly take away the jurisdiction of a civil court, but implication the jurisdiction is ousted. Because the agreeable workmen can approach the labour court or the industrial tribunal and all that. Supreme Court has said there is an implied bar. So, we have number of such enactments, land revenue loss. So, in respect of revenue disputes no question of civil court entertaining. Therefore, if a civil court entertains a matter in respect of which a special legislation bars it, then it is want of jurisdiction over the subject matter. It is want of inherent jurisdiction. Such a judgment would be nullity. This as I said is quorum non-judice, C-O-R-A-M quorum non-judice, N-O-N-J-U-D-I-C-E. I will read it out from 1954, Supreme Court. I am giving the meaning of that expression as found in this Wharton's Tonsize Law Dictionary. Wharton's Tonsize Law Dictionary. I have an Nonsize Law Dictionary by Wharton, but same I check it even in that the same meaning is developed. So, Tonsize Law Dictionary. Quorum non-judice, C-O-R-A-M quorum non-judice. In the presence of a person not a judge, this is good for you. In fact, actually a judge gives the judgment. But what is the effect of the judgment as do I a person who is not a judge? It is a judgment written in the absence of a judge. In the presence of of a person not a judge, though technically he may be a judge, though he may be recruited by the government, a recruited by the High Court appointment is done by the governor, he is certainly a judicial officer, he is certainly a judge. But he has exercised a jurisdiction which he did not have. It is not an error in jurisdiction, it is an error of jurisdiction. If it is an error in jurisdiction, it is still a valid decree unless it is set aside either by the Appellate Court or by the Revisional Court. Want of territory, I mean want of jurisdiction or the subject matter to be sued or want of inherent jurisdiction goes to the root of the matter as held by Supreme Court in that Kiran Singh's case. So, the effect of a judgment given by a court which does not have that inherent jurisdiction or jurisdiction or the subject matter to be sued is as though it is given by a person who is not a judge in the absence of a judge, quorum nonjudice. When a suit is in the dictionary expenses, when a suit is brought and determined in a court which has no jurisdiction of the matter, it is said to be quorum nonjudice and the judgment is void. So, a judgment given by a court which has no jurisdiction over the subject matter to be sued is a void judgment, it is a nullity. I repeat, if it is want of territorial or pecuniary jurisdiction, judgment is not void. It is a valid judgment till it is set aside in appeal or in revision. Party who has suffered that decree has to challenge it by way of an appeal or revision as the case may be. But in the case of a void decree, what is the position is this? I read out 1954 Supreme Court, it says it can be attacked during execution, it can be attacked in collateral proceedings. Now, I have told you different categories of decrees, different modes of challenging a decree for decrees passed by courts which have pecuniary territorial jurisdiction appeal under section 96. If it is a preliminary decree, you will have to challenge it then and there, you cannot wait till the final decree is passed and challenge the preliminary decree. No question of a challenge to a compromise decree, challenging a valid decree, challenge to a void decree. That is a decree which is quorum non-judice which is passed by a court which has no jurisdiction over the subject matter. What is this? Number one, it need not be challenged at all. Though the title is challenging a void decree, the first thing is it need not be challenged at all. You can ignore it. I will give examples for this. I will tell you the different modes. Number one, it can be ignored because the law is a void transaction can be ignored. But if it is going to affect the person who has suffered that who is that void transaction or void instrument is going to affect him, then he can sue for cancellation under section 31. But it can be ignored also. I don't want to challenge it. Some person who has no jurisdiction has passed this order. Why should I challenge it? I don't challenge it. There is nothing wrong in challenging it. He can prefer an appeal. He can prefer a revision if revision is provided. But he can also ignore it. Well, as and when it comes, I will do it. Then there can be an appeal or revision. Go not need it. It is not required to challenge a void decree either by way of an appeal or revision. But if he chooses why he should take the risk, let me challenge it. All right, do it. Third, it can be challenged by way of a suit also. A void decree can be ignored number one. A void decree can be challenged by way of appeal or revision as the case may be. A void decree can be challenged by way of a suit. It can be challenged by way of a suit. That is why in some of these court fee enactments, there is a provision for collection of court fee, for determination of court fee, for cancellation of instruments and decrees. In the Karnataka court fees and suits valuation act, it is section 38. It provides for determination of court fee in a suit for cancellation of a decree also. Then it can be challenged in execution proceedings. There is one basic principle that is an executing court cannot go behind the decree. The judgmentator has to challenge it by way of an appeal or revision. She can't raise contentions during the execution. No, the suit is bought. I did not have to pay so much of interest. I have cleared the entire booth. I was not a tenant at all. Nothing of that kind can be urged because there is already a decree. So, the executing court cannot go behind the decree. For this, there is an exception. The exception is if the decree is void, then even the executing court can examine whether it is a void decree or not. That is an exception. Please go to section 47 CPC. All questions related to the execution discharge or satisfaction of a decree shall have to be determined by the court executing the decree and not by way of a separate suit. So, the executing court cannot tell the judgmentator, well, if it is a void decree, she could have challenged it. Section 47 says questions relate into execution of the decree. It is not executable at all because it is a void decree. Discharge or satisfaction not necessary for a purpose that can be decided. We have a number of decisions under section 47 CPC dealing with this aspect of the matter. Some two or three examples might help you to know this. I told you of these rent legislations. Now, a landlord can evict a tenant by filing a suit, a regular suit, a title suit. If it is a term lease after expiry of the term of lease, otherwise by issue of a quick notice provided by 100 and 6, there are different modes by which tenants is terminated under 111 of the Lancet of Property Act. Suppose in the demised premises, that is the premises which is let out, is covered by the provisions of the local rent laws, a civil suit does not like. It is the court under that act. In some states, they call him a rent controller. In Karnataka, the rent controller, the Karnataka rent controller was a person from the revenue department who was within the rate of rent, where rent and all that, he had some jurisdiction and all that. In some states, the rent controller, they call him. In some courts, a rent court by whatever name it is thought, in Karnataka, we register it as HRC, post credit, house rent cases and all that. Now, let us take a case where a landlord files a suit for eviction, order 7 rule 1 plaint. The office of the court does not know that the lease premises is covered by the provisions of the rent act that the suit does not like. The plaintiff lawyer may not be knowing it. Defendant lawyer may be knowing or may not be knowing, knowing also he may just participate in the proceedings only to content during execution proceedings if the decree is void. The court is also not aware of it because the officer, judicial officer is posted after trial so he does not know whether this place is covered by the rent act. Either by ignorance or deliberately on the part of the defendant or even the plaintiff may deliberately file it with us there are some stringent provisions under the rent act he has to make out a case for eviction. So, ignoring all that either by ignorance or deliberately if a suit is filed and the decree is obtained at the hands of the trial court, decree is confirmed by the first appellate court, by the high court in second appeal, by the supreme court also. Common sense would tell us no, it is a decree confirmed by the supreme court also. Where is the question of the decree being reexamined, validity can be reexamined by the executive court. The law is if the decree is void, passed by a court which had no jurisdiction, which had no inherent jurisdiction, which had no jurisdiction of the subject matter. A court passed by an incompetent court, it is not an incompetent judge, it is not a competence of the judge, it is the competence of the court, it is a void decree even in execution proceedings that can be challenged. So, the judgementator can say well, I admit that there is a decree against me, decree for eviction against me. It is true that the honorable supreme court has also confirmed the decree. Well, who has passed the decree? A civil court has passed the decree. Well, the decree is void. So, nothing can be done in the executive court. The whole process has to be readen by filing the petition for eviction. I will give one more example. We had a family courts act. There are places where family courts are established in all district headquarters. There are places where the family court has got jurisdiction only over the district headquarters where it is located. Or in some places, there is no family court at all. I jokingly tell where there is no family court, probably families are happy there because there is no family court. So, if there is no family court, in Karnataka, it is the senior civil judge who entertains petitions under the matrimonial laws for restitution of constitutional rights, judicial separation, nullity of marriage, dissolution of marriage that is diverse, diverse by mutual consent. Now, let us take a case where there is a family court established. The regular civil judge does not know whether the family court has jurisdiction over the entire state or only over the place where there is the district headquarter. Obviously, does not know it. Lawyers do not bring to notice. Now, let us say a husband files a petition for divorce under the Hindu marriage act and special marriage act and divorce act before a senior civil judge. He entertains a petition. A degree for divorce is granted. Why the senior civil judge? As on that date, there was that family court. In fact, the family court said says if a petition is filed in the regular court, if during the pendency of that petition, the family court is established in that area, that petition shall get transferred to the family court. It is a statutory transfer. So, nothing has been done. The senior civil judge continues with the proceedings passes a degree for divorce. There is a degree. Why files a suit for maintenance against the husband? Instead should know maintenance is not just under 125 CRPC or under section 24 and 25 at the Hindu marriage act or this famous domestic violence act. A civil suit also allies. It is the right of a wife, right of a parent, right of children to have minor children to have maintenance from their husbands, parents and children. A civil suit. So, wife files a suit for maintenance. Husband says you are no longer my wife. I have obtained a degree for dissolution against true. You have obtained a degree. Which is that court that has given you the degree? A court which did not have jurisdiction at all. Court says, did you challenge the decision? No, I did not challenge. It is a void degree. I am entitled to ignore it. This is called challenge by way of a collateral proceeding. What is the suit that the wife has filed? The wife has filed a suit for maintenance. The suit is not for setting a set, the degree for divorce passed by the court which was not completed. Please understand this distinction very clearly. Suit is filed by the wife for maintenance. It is not a suit filed for cancellation of the degree or setting a set the degree passed by that civil judge who had no jurisdiction. In a collateral proceeding, in a totally different proceeding for maintenance, this wife who has suffered a degree at the hands of a court which had no jurisdiction can challenge this validity of this degree. This is called collateral attack. It is not a direct attack by filing a suit for setting a set the degree. It is a collateral attack. The main proceeding, the proceeding itself is for maintenance. In that maintenance suit, she can attach that it is true. You have obtained the degree. I did not challenge it. I did not challenge it because it is a void degree. Now, I am raising that question. So, it is a collateral attack. It is a collateral proceeding also that can be challenged. Now, the family court ad says if there is a property dispute between the husband and wife, the family court can entertain it. Supposing a suit for partition is filed by the wife, employee not only the husband, but others also. And the family court thinks well, so for partition, the husband is a party, wife is a party, I can entertain it. No. Family court can entertain a dispute only between the husband and wife, not necessarily the restitution of conditional rights, divorce and judicial separation even in respect of the property dispute. But the suit that I am referring to is not confined only to husband and wife, but certain other persons are also parties. The family court ignores it and passes the degree for partition or whatever degree it is. We have a declaration of title if you are the wife, husband whatever it is. It is a void degree as far as those persons are concerned because it has been passed by a court which had no competence at all. Maybe even for these people because it has been passed by a court which had no competence. So, the legal position is by consent of parties, court does not get jurisdiction. Court cannot assume jurisdiction by consent of parties. Well, we have no problem. The family court is situated in the district headquarter far away from this place. We cannot go. We have no objection for this court to go on. So, jurisdiction cannot be conferred by parties by their consent. Jurisdiction has to be conferred by a statute. So, a void degree number one can be ignored. It can be challenged by way of appeal or revision whatever is provided. It can be challenged by way of a separate suit. It can be challenged in execution proceedings. It can be challenged in collateral proceedings. I will give the decisions at the end. Now, let us have a look at section 11. I am not dealing with it in great detail. As all of you know, if a degree is passed by a competent court and finally, it is paused off deciding the issues, a subsequent suit will not apply. The subsequent suit is hit by the principles of resturicator. All of you know it. But in what situations that resturicator would apply, one condition is it should be by a competent court such an 11 itself would tell it. No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a formal suit between the same parties or between the parties under whom they are any of them claim, litigating under the same title in a court competent to try such subsequent suit. Therefore, the competency is important here. Of course, a court of limited jurisdiction has also competence, all that in private explanation. Keep this in view. The basic principle contained in section 11 is resturicator. If there is already an adjudication, a subsequent suit will not apply. We will find a reflection of this in section 40 of the Indian evidence at 1872. The corresponding provision in the new enactment is section 34, verbatim similar. So, even if you have the act of 1872, there you can put it section 34 of 2023. Absolutely verbatim similar. I will read section 40 of the evidence act. To be surprised why we will speak into CPC, I am referring to evidence act. Judicial officers who have joined know that I speak to different enactments when I take up something whatever is related. For advocates may look at something speaking about CPC goes to evidence act. Certainly, I am speaking something relevant because evidence act speaks of only relevancy. Please read section 40 which is 34 of the new act. The existence of any judgment order a decree which by law prevents any court from taking courtesans of a suit. Which is that judgment? There is already a judgment passed by a court. Section 11 prevents the court from taking courtesans of the CPC or holding a trial is an relevant fact when the question is whether such court ought to take courtesans of a suit or hold such trial. The corresponding provision in CRPC is 300, article 20 of the Constitution principle of W of 40 added. You are now able to hear me? Yes. Yes. Now, in the subsequent suit, well, the might have been a previous suit was now the defendant says that there is already a suit. Therefore, the suit would not like that is what section 40. So, therefore, what is it that he is required to show with us section 40 is in that part related to judgments of courts of justice when relevant. So, a judgment is also irrelevant. So, a judgment passed by a court which was seized of this matter a competent court has given a decree. In a subsequent suit, this judgment becomes relevant. How to prove that? We will have to produce certified copies of the ingredients, judgment, issues and all that. That is a different thing when section 11 speaks of all that. So, it can be successfully shown that there is already a previous statement to prove it. Then 41 says judgments rendered by probate courts, matrimonial courts, insolvency courts, spirituality courts. They are judgments in rem. And whatever is declared by that is inclusive through the past stated theory. And then 42 says, judgments, orders are decreased other than those mentioned in 41 are related to matters of public nature. Now, you will find that 44 is an exception to 40, 41 and 42. Fraud or collusion in obtaining judgment or incompetency of the court may be proved. The corresponding section in 2003 arrangement is 36. I am not, not 36. It is 38, I am sorry, it is 38. Section 44 corresponding section in the new arrangement is 38. Any party to a suit or other proceeding may show that any judgment order or decree which is relevant under section 40, 41 or 42 and which has been proved by the adverse party. How is that proved? So, a production of a certified copy of the judgment, pleadings, issues and everything was delivered by a court not competent to deliver it. It is for a non-judice. It had no inherent jurisdiction. Therefore, the principle of prejudice would not apply. A judgment rendered by a court not competent to deliver it. Competence in the sense of jurisdictional, the subject matter of the suit is quorum non-judice. It is a void judgment. It is an LED. That would not operate as a study data. So, therefore, this B who is a plaintiff in the subsequent suit, true. There is certainly a decree against me. I do not dispute it. But I am still entitled to maintain the second suit because the decree is passed by a court not competent to do it. Not competent to do it. So, therefore, in that matter where I refer to divorce proceeding, a decree for divorce has been given. I said a maintenance suit, a bilateral proceeding. But some other suit, why files repetition for restitution of the legal rights? No, there is already a decree filed. Who has passed it? I can still urge. Well, I am entitled to restitution of the legal rights. They are not a duty to take me back. The decree that you have obtained is an LED. So, therefore, 44 is the exception to it. One exception is when the decree is passed by a court not competent to deliver it. Case clause I will come later. Second thing is, if it is obtained by fraud or by collusion. First, I will deal with this collusion. This happens many times. A files a suit against B for some relief, declaration, specific performance, eviction, all these things are done. This B defendant gives a show of contest. He will be watching the proceedings. If he finds that the summons is returned, he will not stand up. The lawyer will also not stand up. If the endorsement is that the summons is duly served and the court is inclined to proceed exporter, then the defendant will appear and say, I may be given time, we will engage a lawyer. Or some lawyer would say, well, oh, is this the matter? So, case number so and so, well, I have instructions to appear. I file a memo of undertaking. On next day I file a memo of undertaking or it will fast over. Next day I will file that what all. So, this goes on and we also honestly believe that there is a real contest. It goes on, one find that the matter is referred to Lothar Dalat or he passes, he gives complete consent for the D3. Well, if you are satisfied that it is a clear case of consent or a judgment and admission, certainly we can pass it. Ultimately, it may turn out to be a pollusive suit. Either the plaintiff has title or the defendant has title. Somebody else's property. Such a decree is passed. That decree will not operate as restudigator. Number one, a decree passed by an incompetent court does not operate as restudigator. A decree passed in a suit which is signed by a polluser between the parties does not operate as restudigator in view of section 44 of the evidence that corresponding provision 38. Then what is this fraud? Fraud on the court. The material documents are suppressed. Existence of a previous proceeding is suppressed. Relationship is suppressed. As we often say, parties are not going to be caught with clean hands. Something has happened. It is a fraud on the court. So, if a decree is obtained by practicing fraud on the court, that decree is void. One decree which is void is for a non-judice, passed by a court which had no jurisdiction, passed by a person by the absence of a judge. Another is, if it is by collusion, another is by a fraud. This is the position in that result. Now, we will refer to a few judgments in this result. We will make a beginning from this beautiful judgment of the Supreme Court in 1994, Volume 1 SCC page 1. SP Chandalawarayanoidu versus Zedarnath. This decision actually does not deal with section 44 of the evidence act. But the principle behind section 44 is seen in this judgment. It is a judgment on the Supreme Court 1994, Volume 1 SCC page 1. The very first para in this judgment reads like this. Fraud avoids all judicial acts, ecclesiastical or temporal, even in religious matters, even in temporal matters, that is something relating to our daily life, material life. In Tarnada, we say laukita, laukita vahara matthu adhyatmthi saman buddha, both ecclesiastical and temporal. Temporary temporal, because we believe that it is only a temporary world where world is elsewhere. So, it is a temporal world, ecclesiastical or temporal. Observe whom? Chief Justice Edward Cote of England, about three centuries ago. That means, even three centuries ago, 300 years prior to 1995, it would take us to 1960-65, even in those days fraud was to be played by people. By playing fraud on the court is a nullity and non-yes in the eyes of law. Such a judgment of decree by first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court, even in collateral proceedings. So, therefore, in collateral proceedings, there can be challenged a wide decree, a quorum non-judice, passed by a court, not thought to be causing no jurisdiction, obtained by fraud, obtained by collusion. This refers to fraud. Now, there is some interesting passage here. The High Court against the judgment of which the matter written in the Supreme Court had made some observation there. It is no part of the duty of the plaintiff to state true facts in the plaint. He did not set out true facts. The High Court had taken such a view. See, it is, there is no duty, capital, apply to him. The Supreme Court said, we can't approve of this. The facts in the present case leave no manner of doubt that Jadarnath obtained the preliminary decree by playing fraud at the court. The fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of the present. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jadarnath was working as a clerk with Sautar. He purchased the property in the Chotachan on behalf of Sautar. He had on his own volition executed the registered release deed in favor of Sautar, regarding the property in dispute. He knew that the appellants had paid the total dictatoral amount to his master Sautar. Without disclosing all these facts, he filed the suit for the partition of the property at the drought that he had purchased the property on his own behalf and not on behalf of Sautar. Non-production and even non-mentioning of the release deed at the trial turned amongst to playing fraud on the court. We do not agree with the observations of the High Court that the apparent defendants could have easily produced the certified registered copy of that release deed and non-suited the plaintiff. A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side that he would be guilty, then he would be guilty of playing fraud on the court as well as on the. Now, what is the observation of the High Court? The High Court in turn referred to some decision and made these observations. From this decision, it is followed that except proceedings for probate and other proceedings where a duty is cast upon a party litigant to disclose all the facts in order cases. There is no legal duty cast upon the plaintiff to come to a court with a true case and to prove it by true evidence. So, High Court observes in that case, by referring to some other case except in probate proceedings and other proceedings. There is no duty cast on the plaintiff to come to the court with a true case and prove it by true evidence. The Supreme Court did not agree with this. As I told you, section 44 of the evidence that is not referred to here, but this would help us to know what this concept of fraud is. This decision telling us what is the effect of fraud has been followed subsequently in 2006 volume 7 SCC 416, 2006 volume 7 SCC 416, Hamsa Haji versus state of Kerala. Hamsa Haji versus state of Kerala. In a pair of 20 of this decision, we find a reference to this a speech Engel Warai in it. Well, this directly deals with section 44, paragraph 15. The law in India is not different. Section 44 of the evidence that enables a party otherwise bound by a previous adjudication and principle of restudicator to show that it was not final or binding because it is initiated by fraud. The provision therefore gives jurisdiction which is the provision 44 of the evidence that gives jurisdiction and authority to a court to consider and decide the question whether a prior adjudication is initiated by fraud. Some earlier decisions, then the reference is made in paragraph 20 to this Engel Warai. Then subsequently this has been followed in 2012 11 SCC 574, 2012 11 SCC 574. Well, of course, that is in different context kind of order 12. So, anyway the fact that this decision is referred to in two subsequent judgments is an indication that it is a leading decision on the points of this fraud. So, pollution I have explained, fraud I have explained, incompetency I have explained in the best of competence I have. Now, one decision regarding this incompetency of the court 1995, 4 SCC 163, 1995, 4 SCC 163, Ashrafi Lal versus Koyli, 1995, 4 SCC 163, paragraph 8 of this judgment referred to from earlier judgment. The same principle would apply to a judgment of a court in an earlier suit or proceeding. The judgment of a competent court is normally binding in the parties to the proceeding and it operates as restudicator in a subsequent proceeding between the same parties. An exception to the said rule is drafted by section 44 of the Evidence Act which provides that any party to a suit or other proceeding may show that any judgment or order of the decree which is relevant under section 40, 41 and 42 and which has been proved by the adverse party was delivered by a court not competent to deliver it or is obtained by fraud or collusion. The effect of the said provision is that a judgment delivered by a court not competent to deliver it or a judgment it is obtained by fraud or collusion does not operate as restudicator and is bad binding on the parties to the proceeding. A judgment can be avoided in a subsequent proceeding by a party which is able to show that it was delivered by a court not competent to deliver it or it was obtained by fraud or collusion. Since such a judgment does not operate as restudicator it is not necessary to institute a proceeding for setting it aside. A party to a proceeding against whom a judgment in an earlier suit is relied can successfully avoid the said judgment if we can establish in the subsequent proceeding that is what I said a collateral proceeding that the said judgment was delivered by a court not competent to deliver it or that it was obtained by fraud or collusion. I repeat say direct attack is by filing a appeal or revision or by filing a suit collateral attack is the suit is not filed for relief to set aside the decree. Some other suit is filed in that suit is the opponent rises well there is already a decree there he can say that decree does not find me because it is passed by an incompetent court. It is passed by a court where one of the parties played fraud it is passed by because there was a collusion between the parties. Now, this would take care of the issues that I wanted to deal. As I said one kind of decree is a consent decree against which no appeal lies under 963 as the honorable super import has put it a compromise decree is also a consent decree and therefore no appeal lies. So, no appeal under section 96 or 41 lies. Then what is the remedy? Please have a look at order 23 rule 3A. As for the disaster year entire order 23 of the last vacation withdrawal and compromise I am not referring to anything beyond the order 23 rule 3A in this session. Because if I refer to withdrawal, Vithas Chaturthi will ask me to withdraw from the session immediately because it is already 8. We will take up only order 23 rule 3A. No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Now, what is that lawful? Go to exploration. 2 order 23 rule 3 an agreement or compromise which is void or voidable to be Indian contract shall not be deemed to be lawful if you mean of this rule. So, there cannot be a separate suit to challenge a compromise decree. An appeal under 96 regret order 41 is also in view of 953. 83 obtained by consent no appeal lies no suit lies. What then is the remedy? First let us examine the statutory provisions specific statutory provisions. I repeat no appeal no suit in view of order 23 rule 3A. Then what then? Then have a look at order 43 rule 1 capital A sub rule 2. Order 43 rule 1 capital A sub rule 2. In an appeal against a decree passed in a suit after retarding the compromise or refusing to record a compromise it shall be open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded. We will have to carefully read this provision. In an appeal against a decree passed in a suit the appeal that is contemplated herein is an appeal under section 96 read with order 41. In that appeal against a decree that is passed after recording the compromise or refusing to record a compromise. This is the it requires some explanation. Please hear me very carefully. I must very honestly tell you I had also lot of difficulty in understanding this provision. After going through the case class and other things now I am able to I believe that I am able to articulate it in a better manner. You see please have a look at order 23 rule 3 itself first. Order 23 rule 3 speaks of a decree based on compromise. There is a proviso attached to 23 rule 3 provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at the court shall decide the question but no adjournment shall be granted. Now let us say the plaintiff A is ready with a compromise petition. The defendant B might have also signed that compromise petition or he might have put his thumb on for whatever reason it is. Or A believes in the court he will do it in the open court he will do it. The defendant lawyer also tells no my client will come to the court in the presence of a judge himself. He would admit he compromise and sign the compromise petition or he has done it by some force or somebody. Now before passing a decree on compromise or accepting the compromise a judge is required to satisfy himself about two things. Number one about the voluntaryness of the parties. Have they given really consent? Is it by their own volition preconcent? Secondly is it lawful? These are the two requirements. Now this B says no I have not signed it. This is not my signature or he may say I was forced to sign. The plaintiff lawyer forced it me or my own lawyer forced it me. Plaintiff said I will pay you one lakh before the matter is taken up before the court therefore I signed it. He has not paid and I have not entered into a compromise. So this is a case where there is a dispute as to whether there is a compromise or not. In which event the court has to hold an inquiry whether there is a compromise or not. B asserts that there is no compromise. A asserts that there is a compromise. The court after folding inquiry comes to a conclusion that there is a compromise. Please understand this. Court after coming to a conclusion that there is a compromise passes a decree on compromise. This is not a consent decree under 963 CPC for this B to remain silent. For him it is not a compromise decree because even now he asserts that I did not consent for compromise. So this is a case covered by order 43 rule 1A2 which says well I also seek for better enlightenment from others. This is how I have understood it with some very difficulty to tell you very bad thing. In an appeal against a decree passed in a suit after retorting a compromise here there is a problem or effusion to retort a compromise. Now as far as the this B is concerned it is not a compromise decree at all he did not agree for that. He can challenge it. Now let us say A says there is a compromise B says there is no compromise. Court accepts the stand of B and says that there is no you are now able to hear Are you able to hear me? Yes sir. Yes sir. I will just close. I think time is coming another time I will just close. So now the court says after holding an inquiry under the provisor to order 23 rule 3 he says no there is no compromise at all. It proceeds to pass a decree on merits. Right. One person is accrued by that. Let us say the suit is dismissed. Plenty files an appeal under section 96 saying there is already a compromise. The court did not accept the compromise and it has proceeded to pass a decree on merits. There in that appeal which we call as a regular appeal under section 96 one of the grounds that the court that the plaintiff or the appellant intent is there had been a compromise. Instead of accepting the compromise and passing a decree the court has proceeded to pass a decree on merits. I am not so there one throne can be urged. Now this year then courts have said the other remedy is by 151. Of course what is the rule 18? It contemplates an appeal under 96 where one of the grounds could be this but 151 is what the courts have said is the only way by which a compromise decree can be challenged. I am not referring to the ratio lay down in all these decisions because last time I have already given those decisions. I am quickly referring to the citations. I am avoiding the parties names because it takes a good lot of time particularly in one decision it is very difficult to even spell the names of the parties. Too long a name I will just give the citations one or two which I did not notice earlier or which were reported later. 1993 volume 1 SCC 581 for this I will give the parties name because this is the first decision on the point Banwari Lal versus Chandu Devi 1993 1 SCC 581 Paranth then 2005 6 SCC 300 2005 6 SCC 300. It is in this decision that 43 rule the reason is there was a provision under order 43 rule 1 to challenge a compromise decree 40 day rule 1 M it provided for an appeal against a compromise decree that has been deleted by 1970s amendment in its place in a different forum we have this 43 rule 1 8 then we have 2006 5 SCC 566 2006 5 SCC 566 here again I am giving the parties name mostly for the reason it is easy to produce Pushpa Devi Bhagat versus Raji in the scene secondly because it is of justice R.D. Ravindran whom I have all grown and number of rotations told to summarizes the entire legal position such a para 70 of this statement the position that emerges from the amended provisions of order 23 can be subduped thus no appeal is maintainable against a consent decree having to go to the specific bar contained in 963 no appeal is maintainable against the order of the court retort in the compromise or refusing to retort a compromise in view of deletion of class M of rule 1 of quarter 43 no independent suit can be filed for setting aside a compromise decree on the ground that the compromise was not lawful in view of the bar contained in rule 3 a a consent decree operates as a restful and is valid and binding unless it is set aside by the court with positive constant unless it is set aside by the court with possibly complicated that by that court by an order on an application under the proviso to rule 3 of quarter 23 that is read with 151 then we have 2008 8 SCC 348 2008 8 SCC 348 in fact all these earlier judgments have been referred to you may read para 14 then we have this decision which requires some explanation till this we have no problem the principle of law which we had understood which I assert which we had rightly understood was a compromise binds the parties to the compromise and obviously parties to the suit it cannot bind a stranger the bar under order 23 rule 3 a can be only for a party to the compromise for a stranger it cannot I told you about a collusive suit a and b file a suit it is a collusive suit there is a consent decree right a and b are bought by 1960s to file a appeal they can't file a suit because it has been disturbed to be a compromise degree or 23 rule 3 is a bar how is that see who is affected by this decree his property is his rights are in geo party because of this compromise decree between a and b a collusive decree or some other decree or certain facts not having brought to the notice of the court he may have an independent title this C is not going very compromise this this is a basic principle which we are following there appears to be some I am godly using the word appears to be a slight deviation in this trilogy not the scene versus any loop the scene trilogy not sing versus any loop the scene 2020 volume 6 SCC 629 you are hearing or yes 2020 volume 6 SCC 629 this decision at first blush gives an indication that even a third party is bought by order 23 rule 3 a from challenging compromise from filing a separate suit he can't file a separate suit his remedy is also to approach the very same board in my way of a petition under 151 this gives that indication at first blush usually headnotes also we will tell us that's the impression that has that many have gained on reading this judgment of course the ternarco high court has verified it but there is some indication in this very judgment itself to say that the bar under order 23 rule 3 a is confined to the parties to the compromise there are 22 of these gentlemen reads like this indeed the appellant was not a party to the stated compromise decree why he was however claiming the right title and interest over the land refer to in the stated salientated so-and-so which was purchased by him from so-and-so judgment data and party to the suit it is well settled that the compromise between passing by the high court in the second appeal would relate back to the date of institution the suit within the parties in the suit now instituted by the plaintiffs at best he could see the relief and so-and-so but cannot be allowed to question the compromise decree therefore the person who filed that independent suit in this case was claiming under a party who was a party to the compromise the ternarco high court had an occasion to clarify this it may be a little difficult to use the expression clarification with us technically the high court cannot clarify it well for lawyers and judges we can take it as a clarification given by the high court rather or explained by the high court ilr 2021 ternarco 338 sushila versus vijain kubar in this decision or rather in this case this Trinokinath Singh was cited the high court said in that case the person who had filed the independent suit was claiming under a party to the earlier suit which ended in compromise and therefore there is a bar where a 22 and 22 of this judgment are important as far as the reliance based on the decision of the honorable supreme court is concerned has to be noticed in the case of Ilrokinath itself has to be noticed in the case itself in that case itself the person who had filed a suit challenging compromise was claiming his rights under a person who was a party to the compromise that had been entered into in the set suit and in that context the effect work effects court had held that even if the plaintiff was not a party the bar under rule 3 would apply where a 23 has to be seen from the above that is not the scenario in this case in instant case the plaintiff was not claiming any rights under any of the persons so therefore we can take it that Ilrokinath Singh would indicate a bar even to a stranger if he is claiming under a party to the otherwise not then we may read 2021 9 SCC 114 2021 9 SCC 114 just do not read the first five headnotes because they do not deal with order 23 they deal with family law into law partition and all that normally I do not refer to any headnote because he in this case I have made a note of the headnote only to know for myself that this decision also deals with order 23 relevant paras are paras 53 to 59 they deal with the entire stop of this order 23 then 2022 5 SCC 449 2022 5 SCC 449 paras 21 and 22 empty if it is fraud and other things now one more thing see in this case a challenge to compromise victory was not accepted because they wanted to get that compromise degree amended at a 152 cpc the court said 152 is meant for the track in some clerical or mathematical errors or typo-technical errors there cannot be a challenge to a compromise victory at a 152 cpc then 2022 5 SCC 736 2022 5 SCC 736 paras 729 2023 9 SCC 641 2023 9 SCC 641 paras 84 to 93 84 to 93 95 96 101 103 and 104 84 to 93 95 90 101 103 104 and perhaps this 22 or 23 decisions I had not cited in the last occasion now what all I have spoken about challenge to a compromise victory passed in a court now we have this compromise decrease in lota dalak God might be placed may be played on the lota dalak there could be a collusion also here there what's the remedy if a decreed past rather technically speaking an award is passed by the lota dalak where is to be charred this is by way of the rich before the high court this is made clear in 2008 volume to SCC 660 2008 volume to SCC 660 it should be sufficient but since there are some judicial officers about the care they need to take while entertaining these compromise matters in lota dalak you may again refer to another beautiful statement of justice R. E. Reagan in 2009 to SCC 198 I am not going into details because I am not referring to any prohibition to the legal series or anything that is not subject for discussion since I refer to this challenge to an award passed by lota dalak I thought it better to bring to the notice of the judicial officers here as to the care that they are required to take sitting in lota dalak this is 2009 to SCC 198 as Paras 8 9 and 18 Paras 8 9 and 18 the Godship Justice Revenon has referred to the provisions the legal series authority sat and all right you know doing with this I am done though I had given the title topic as most of challenging a various degree in the heart of my hearts I was only here about explaining to the audience the concept of a wide degree and the concept of forum nonjudice if what I have said has reached the audience effectively I believe that my presentation would not be forum nonjudice I will take it the presentation not competence in the sense of intellectual competence I will take it a person who has jurisdiction to speak over it has spoken about it I am not worried about other things if incidentally you want to remove those things I have a problem when the heart of my hearts my whole thrust was to tell you what a wide degree is there also it is forum nonjudice because there is some impression gained by 99 CPC that want of jurisdiction can be made a ground of attack in an appeal that is permissible only when it is passed by a court which had no inherent jurisdiction an incompetent court forum nonjudice then section 44 of the evidence that says degrees passed by incompetent courts then obtained by fraud and collusion do not operate as resturicator so if I have conveyed these things effectively there will be resturicator for me also because I can't speak on the same subject because I have completely dealt with this so let me not speak about this again on some other occasion so if you have understood that concept of forum nonjudice incompetency of a court what a wide degree is I think my presentation would be successful so thank you Mr. Vithas and Krivithram any questions I will take it provided that your sweep meeting is because I have exceeded my time I know it once you know that once you come to the platform we know that it doesn't get to us and we will be it will be a power program where back to back we will having the knowledge like you said that it was a session you hit the bull's eye everything so illicitly explained that everyone will be enjoying it but three questions have come separately yes please yes though not directly with the degree etc it says let's assume there's an order which is wide without jurisdiction on the executive side is there any limitation to challenge that and under what provision it will be no first of all there is no need to challenge secondly when there is no need to challenge there is no question of a limitation though he has given this example with the it's a service matter let's assume an order of punishment my own knowledge about this matter is limited no that order is without jurisdiction that order was not by the competent authority but it is still operational so if you have to challenge it whether there will be any limitation to challenge that no there is one aspect is a challenge is only by way of a rift my own knowledge of pretty jurisdiction is very limited but with us with us Chetrat is more competent to speak about it a rift quote to my understanding does not entertain matters if there is an inordinate delay though there is a period of limitation as such inordinate delay in challenging something before a rift quote may be a goal for not entertaining it limitation may have such my first principles of law would tell me that there cannot be a question of limitation there I stand corrected if we otherwise in rift they say that broad principles of limitation would apply it cannot be dismissed on the ground of they say it will be a dismissed on the ground of delay and latches not on the limitation but they say for delay and latches normally three years that's a supreme court constitutional bench but if that order is without jurisdiction like you said you don't have to challenge it but if that order is wide every show so what we need to challenge no need to challenge no but it is affecting that employee that's why I'm asking I as a judge it is an employee of the revenue department he's a bound by that a simple example I'm a district judge there's an employee of the revenue department he does not honor the court summons I will say has not honored the court symbols I will dismiss him for what jurisdiction I have he did not challenge that term he can ignore that but in case the department acts upon it I go a step further in case the department acts upon it and you don't challenge it within the petition then what will be the effect there are the point is this first of all according to me there is no point of limitation you say the Ritz court doesn't entertain it even then what I tell is if a district judge dismisses an employee of the cooperative society mostly these revenue departments at police because others we don't have much to contact some revenue department official does not develop before the court does not produce the documents the police officer does not the the judge is fed up we build up sangria and dismiss you from service passes on order what is it suffered totally corrupt law duties right and then he can even ignore that the next question is let's assume you have submitted to a jurisdiction and ultimately you challenge it can there be any parties cannot turn for jurisdiction and I quote if it is a case of territorial or pecuniary jurisdiction in your section 21 and 21 to then 99 CPC as explained by the Supreme Court is that currency relevant provisions of the court fees and well unless there is a failure of justice which is very difficult to demonstrate no question of there it is a bar but if it is want of clear lack of jurisdiction jurisdiction of the subject matter inherent jurisdiction certainly even by consent as I said in the family court the wife does not rise the question of jurisdiction husband does not rise the question of jurisdiction all right the family court is situated elsewhere will quote I even quote to the extent of saying even if it is a degree by a mutual consent well it is that court which has given that degree the court which had no top itself at all so you can't transfer jurisdiction when it does not exist at all it's a basic principle so that your judgment of 2006 volume 7 SCC 466 will prevail you refer to what achievement 2006 volume 7 SCC 466 that is yes in the context of fraud that has been explained in the context of what this issue what judgment will be there 95 volume 4 SCC the point is this see it is a simple situation where the court had no initial jurisdiction at all inherent jurisdiction at all parties submit themselves it is a judgment forum non-judice there is no need to challenge it it can be challenged by way of appeal it can be challenged by way of revision revision remedy is available it can be challenged by way of a suit it can be challenged in collateral proceedings it can be challenged in execution proceedings it can be totally ignored no question of limitation there and then the third question was what you had taken up a party who is not a party to the compromise between the two parties yes so whether he will have to challenge it or it will or he can say it was not binding because he was not a party I am not a party to it I will give another example I own this flat right somebody sells this flat to you by registered sale deed right I come to know about but I don't challenge it at all why why should the person who has no title himself has sold the property to you but the fact that there is a registered sale deed in your favor you are likely to add on that registered sale deed get the mutation done and everything come to me saying well I have obtained a sale deed please vacate there is that I am likely to be prejudiced therefore section 31 this specifically Pat says is that instrument it is wide or wideable is likely to prejudice the plaintive he may institute a suit and a remedy is provided if it does not do it all right I don't read the property belongs to me who is the text was told the property to me to be lost yet not know I don't recognize it I can keep it but if I want to challenge it section 31 in this particular fact provides for a suit there of course there is that limitation and all that article to take and all that in that process in that process itself they say let's assume a property has been mortgaged to a bank property has been mortgaged to a bank but but that party by way of a mutual consent and occlusive decree they say that this property I am handing out to my another brother so what will be the effect of that handing out to whom handing out he they enter into compromise is that this property is not being transferred in the name of my brother I am here for you to enter into your compromise or who enters into your compromise so the two brothers one who was who had mortgaged and said they enter into your compromise they enter into your compromise in terms of which who gets the property one of them gets the property a mortgage a have mortgage to the bank yes and the a gives the property by way of a mutual decree to his brother saying that I am transferring this without any reference of that mortgaged what will be the effect there the same that nobody can be giving a given better time hey he can't say he was the person who marketed the property if he had titled to the property at the date of market by this compromise or by this rallying the release did sale did gifted or whatever it is it cannot happen so he has to challenge that already point is this the in the case of a market the position is different here the reason is the property was marketed by a on a representation that he was the owner of the property bank believed him and accepted it and lent the loan now this transfer by a to b it is subsequent to the mortgage yes b by virtue of that transfer has become the owner of the property in a suit to be filed by that mortgaged bank for recovery of money for a preliminary decree per sale or 34 rule one says all parties interested in the right of redemption will have to be made a party to the suit so the title in a mortgage suit the question of title is not involved there it is the right of the market to recover money now the question is since some other party has also come into picture ultimately what happens is a preliminary decree for sale followed by a final decree in the final decree is also not applied to the property would be sold in which event the property as on the date of the court sale would not be belonging to the marketer you would have gone to his brother or someone else so there the problem would arise and therefore out of 34 rule one says all persons interested in the equity of redemption shall be added as a part of the market suit the position in a market is quite different did you follow that thank you thank you I will ask you to share this knowledge I just had this doubt that I just wanted to convey and take more clarification there was one of the latest judgment reported judgment by our honorable high court repudiation is the only remedy against a compromised decree passed in Lokadalat especially when it is obtained in fraud our honorable justice Srisanandasar's judgment is there who can sir throw some light on this that we will have more clarity we have a citation or case number it can also tell it what is it sir it is msa msa 1 00010 of 2021 I repeat msa that is miscellaneous second appeal 1 00010 of 2021 decided in darwad beach decided on 2nd february 24 I think judgment was recently released very good so that could be some continuation of the present discussion I think yes so definitely definitely thank you for adding to the discussion thank you sir so the last question we can take is respected sir in a mortgage decree decree holder can file a sale proceeds this question is incomplete no sir thank you for sharing your knowledge and thank you to sir and your son we are all obliged that they always take out the time to help us to join and learn from you thank you everyone in mind also sir a very special thanks to you thanks to mr. Subramanian Kaushik your daughter-in-law there are so many other learning presiding officers who have joined the session we also have other members of the students our main host mr. Vikas Chedrath so indebted to all of you thank you so participating I don't think that for students it was useful today let me be very honest but still it's a different plane it's very complicated I want a number of law colleges gradually I'm losing interest in addressing students because some of them they don't have interest slowly losing interest in addressing the students because my focus is mainly judicial officers in the judicial academy and any invitation from bar association or bar council to speak to advocates and because Chedrath I will be happy to do it because it could be of some use to them I will be very glad to do it we always believe in this I also thank you for sharing the platform no we always believe that we should share because basic definitions everybody can read it and understand it but professional knowledge can only be shared by the professional who has an experience like people like you so thank you sir for sharing your knowledge in the arbitration center also students come for as interns I was also taking a lot of interest and the typists and staff also sir some students have come shall be sent it all right I was taking pleasure I was explaining to them before concept over a period of time unless I asked them they won't open up and I limited so I only I asked them to have that ending with them otherwise on my own I have stopped asking them anything maybe I'm a little conservative now it will go it will be and thank you it will be always beyond eight it will be always beyond eight p.m. no sometimes you will start at five so that it ends up before eight we will change for that because Sunday I will take my put between two thirty and three and I need some rest right thank you