SNEH LATA GOEL versus PUSHPLATA & ORS.

SNEH LATA GOEL

PUSHPLATA & ORS.

(Civil Appeal No. 116 of 2019)

JANUARY 07, 2019

[DR. D. Y. CHANDRACHUD AND HEMANT GUPTA, JJ.]

Code of Civil Procedure, 1908 – ss.21 and 47 – Partition suitwas instituted – Final decree was passed confirming the preliminarydecree – Further, supplementary final decree was also passed –Appellant filed proceedings for execution of the final decree – Firstrespondent filed objection u/s.47, CPC contending that the decreespassed were without jurisdiction and therefore, nullity – Dismissedby Executing Court – Challenged by first respondent u/Art. 227 ofthe Constitution – High Court held that the Executing Court was inerror in holding that it lacked jurisdiction to entertain the objectionas to the validity of the decree on ground of alleged absence ofterritorial jurisdiction – Application raising the objection wasrestored to the file of the executing court for disposal – Held:Objection to the want of territorial jurisdiction does not travel tothe root of or to the inherent lack of jurisdiction of civil court toentertain the suit – It has to be raised before the court of first instanceat the earliest opportunity, and in all cases where issues are settled,on or before such settlement – Moreover, it is only where there isconsequent failure of justice that an objection as to the place ofsuing can be entertained – Both these conditions have to be satisfiedu/s.21, CPC – In the present case, the objection which was raisedin execution was an objection to territorial jurisdiction which doesnot travel to the root of or to the inherent lack of jurisdiction of acivil court to entertain the suit – Such an objection would not liebefore the executing court – Executing court cannot go behind thedecree and must execute the decree as it stands – Executing courtcorrectly declined to entertain the objection to the execution of thedecree on the ground of want of territorial jurisdiction on thepart of the court which passed the decree – High Court was inerror in holding that it was within the jurisdiction of the executingcourt to decide whether the decree in the suit for partition was passed

Ain the absence of territorial jurisdiction – Judgment of the HighCourt set aside – Constitution of India – Art.227.

Allowing the appeal, the Court

HELD: 1.1 Sub-section (1) of Section 21 provides that beforeraising an objection to territorial jurisdiction before an appellateBor revisional court, two conditions precedent must be fulfiled:

i)The objection must be taken in the court of first instanceat the earliest possible opportunity; and

ii) There has been consequent failure of justice.

An objection to the want of territorial jurisdiction does nottravel to the root of or to the inherent lack of jurisdiction of acivil court to entertain the suit. Hence, it has to be raised beforethe court of first instance at the earliest opportunity, and in allcases where issues are settled, on or before such settlement.DMoreover, it is only where there is consequent failure of justicethat an objection as to the place of suing can be entertained. Boththese conditions have to be satisfied. [Para 9][469-F-H; 470-A-B]1.2 The objection which was raised in execution in thepresent case did not relate to the subject matter of the suit. Itwas an objection to territorial jurisdiction which does not travelEto the root of or to the inherent lack of jurisdiction of civil courtto entertain the suit. Such an objection would not lie before theexecuting court. The High Court was manifestly in error in comingto the conclusion that it was within the jurisdiction of the executingcourt to decide whether the decree in the suit for partition wasFpassed in the absence of territorial jurisdiction. The High Courthas manifestly acted in excess of jurisdiction in reversing thejudgment of the executing court which had correctly declined toentertain the objection to the execution of the decree on theground of want of territorial jurisdiction on the part of the courtwhich passed the decree. [Para 14, 15 and 17][475-C; 476-A-B,GC-D]

Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005)7 SCC 791 : [2005] 3 Suppl. SCR 495; Hiralal v.Kalinath AIR 1962 SC 199 : [1962] SCR 747; HashamAbbas Sayyad v. Usman Abbas Sayyad (2007) 2 SCC

355 : [2006] 10 Suppl. SCR 740; Mantoo Sarkar v.Oriental Insurance Co. Ltd. (2009) 2 SCC 244 : [2008]17 SCR 753; Vasudev Dhanjibhai Modi v. RajabhaiAbdul Rehman (1970) 1 SCC 670 : [1971] 1 SCR 66 –relied on.

Kiran Singh v. Chaman Paswan AIR 1954 SC 340 :[1955] SCR 117 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 116 of2019.

From the Judgment and Order dated 17.07.2018 of the HighCourt of Jharkhand at Ranchi in W.P. (C) No. 3298 of 2016.

Mukul Rohatgi, Sr. Adv., Samdarshi Sanjay, Shyamal Kumar, SunilTomar, Advs. for the Appellant.

S. R. Singh, Sr. Adv., Mangal Prasad, Ms. Sunita Pandit, KrishnaKumar Yadav, Avnish Singh, Ankur Yadav, D. S. Parmar, Ms. SujeetaSrivastava, Advs. for the Respondents.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J. 1. Leavegranted.

2. This appeal arises from judgment and order of the High Courtof Jharkhand at Ranchi dated 15/17 July 2018.

3. The facts lie in narrow compass:

On 9 May 1985, partition suit[1] was instituted by Smt. SarojaRani, daughter of Late Rai Sri Krishna (since deceased), in respect of 1 154/1985

Aher 1/4[th] share in the suit property which comprises of properties atRanchi and Varanasi. The suit was instituted at Ranchi in the Court ofthe Special Subordinate Judge. The defendant in that suit (since deceased)filed petition before the High Court of Judicature at Patna questioningthe jurisdiction of the Ranchi Courts. The petition was disposed of bythe High Court on 10 May 1989 with the direction that any objection toBjurisdiction would be decided by the Special Subordinate Judge at Ranchias preliminary issue. preliminary decree was passed ex-parte on 13June, 1990 granting the Petitioner her extent of 1/4[th] share in the scheduleproperty. final decree was passed on 5 April 1991 confirming thepreliminary decree passed on 13 June, 1990.

One of the defendants in the partition suit filed title suit[2] beforethe Court of Subordinate Judge, Ranchi. On 22 July 2003, the suit wasdismissed for non-prosecution. The first respondent filed title suit[3] beforethe Court of Subordinate Judge at Varanasi which was dismissed underOrder VII, Rule 11 of the CPC on 12 April 2005 on the ground of beingDbarred under Section 21A of the Code of Civil Procedure 1908 (“CPC”).The first respondent filed an application under Order IX Rule 13 in respectof the title suit filed at Ranchi which was also dismissed as withdrawnon 19 February 2008.

Since the mother of the appellant was alive when the suit wasEinstituted, the claim was confined to 1/4[th] share. During the pendencyof the suit, the mother died. As result, there was modification in theshare of the three sisters at 1/3[rd] each. On 18 December 2013, theSubordinate Judge at Ranchi passed supplementary final decree inview of the death of the mother of the appellant and the first respondenton 9 February 1996.F

4. On 12 May 2014, the appellant filed proceedings for theexecution of the final decree at Ranchi.[4] On 1 January 2015, the firstrespondent filed an objection under Section 47 of the Code of CivilProcedure contending that the decree dated 13 June 1990, the final decreedated 5 April 1991 and the supplementary final decree dated 18 DecemberG2013, were without jurisdiction and therefore, nullity. On 10 March2015, the first respondent challenged the decree dated 13 June, 1990 inappeal under Section 96 of the CPC.[5] The appeal is pending.

2 114/1998 3 176/2000 4 5/2014H 5 43/2015

5. On 10 March 2016, the executing court dismissed the objectionsof the first respondent under Section 47 of the CPC with the followingobservations:

“The decree holder is entitled to get the fruits of the decree andthe executing court cannot go behind the decree. When decreeis made by court which has no inherent jurisdiction, an objectionas to its validity may be raised in an execution proceeding if theobjection appears on the face of the record. Where the objectionas to the jurisdiction of the court to pass the decree does notappear on the face of the record and requires examination of thequestions raised and decided at trial, which could have been buthave not been raised, the executing court will have no jurisdictionto entertain an objection as to the validity of the decree on theground of jurisdiction.”

Aggrieved by the order of the executing court, the first respondentinitiated proceedings under Article 227 of the Constitution of India. TheHigh Court by its impugned judgment and order came to the conclusionthat the executing court was in error in holding that it lacked jurisdictionto entertain the objection as to the validity of the decree on ground of analleged absence of territorial jurisdiction.

6. The High Court observed that the plea that the decree couldnot be executed on the ground that it had been passed by court whichhad no territorial jurisdiction to entertain the partition suit could havebeen raised under Section 47 of the CPC. The High Court held thus:

“The executing court fell in serious error in law where it hasobserved that the executing court will have no jurisdiction toentertain an objection as to the validity of the decree on the groundof jurisdiction. Under Section 47 CPC, the petitioner has notchallenged the validity of the decree on merits, rather the pleataken by her is that the decree cannot be executed for it has beenpassed by court which had no territorial jurisdiction to entertainPartition Suit No.154 of 1985.”

The application raising the objection was hence restored to thefile of the executing court for disposal.

7. Assailing the judgment of the High Court, these proceedingshave been instituted.

AMr Mukul Rohatgi, learned senior counsel appearing on behalf ofthe appellant submitted that an objection to territorial jurisdiction doesnot relate to the inherent jurisdiction of the civil court. Such an objectionhas to be addressed before that court and in the event that the courtrejects such an objection, it must be raised before the competent court inappeal. Consequently, the High Court was in error in directing theBexecuting court to deal with such an objection. Moreover, it was urgedthat the respondent was aware of the proceedings which were takingplace, which is evident from the following circumstances:

(i) The respondent had filed title suit before the Court at Ranchiwhich was dismissed for non-prosecution on 22 July 2003;C

(ii) The respondent filed title suit before the Court at Varanasiwhich was dismissed under Order VII, Rule 11 of the CPC on12 April 2005; and

(iii) The respondent filed an application under Order IX Rule 13 inDrespect of the title suit filed at Ranchi which was also dismissedas withdrawn on 19 February 2008.

Based on these circumstances, it was urged that the objectionwhich has been allowed to be raised in execution is merely an effort todelay and obstruct the implementation of the decree which has beenEpassed in the suit for partition.

8. On the other hand, Mr. S. R. Singh, learned senior counselappearing on behalf of the respondents, has urged the followingsubmissions:

(i) An objection to the lack of territorial jurisdiction is an objectionFto the subject matter of the suit and hence of nature that canbe raised before the executing court. In support, reliance isplaced on the decisions of this Court in Kiran Singh v ChamanPaswan[6 ]and Harshad Chiman Lal Modi v DLF UniversalLtd.[7];

G(ii) The impugned order of the High Court is an interlocutory orderand hence it is not appropriate at this stage to entertain aproceeding under Article 136 of the Constitution of India; and

6 AIR 1954 SC 340

7 (2005) 7 SCC 791H

(iii) The case of the respondents all along has been that theproperty on the basis of which jurisdiction was founded atRanchi did not belong to the common ancestor and in whichevent, the civil court at Ranchi had no jurisdiction to entertainthe suit for partition.

9. In assessing the merits of the rival submissions, it would, at theoutset, be necessary to advert to the provisions of Section 21 of theCPC.

“Section 21(1) postulates that no objection as to the place of suingshall be allowed by any appellate or revisional court unless theobjection was taken in the court of first instance at the earliestpossible opportunity and in all cases where issues are settled onor before such settlement, and unless there has been consequentfailure of justice.

(2) No objection as to the competence of Court with referenceto the pecuniary limits of its jurisdiction shall be allowed by anyAppellate or Revisional Court unless such objection was taken inthe Court of first instance at the earliest possible opportunity, andin all cases where issues are settled, at or before such settlement,and unless there has been consequent failure of justice.

(3) No objection as to the competence of the executing Courtwith reference to the local limits of its jurisdiction shall be allowedby any Appellate or Revisional Court unless such objection wastaken in the executing Court at the earliest possible opportunity,and unless there has been consequent failure of justice.”

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

i) The objection must be taken in the court of first instance at theearliest possible opportunity; and

ii) There has been consequent failure of justice.

This provision which the legislature has designedly adopted wouldmake it abundantly clear that an objection to the want of territorialjurisdiction does not travel to the root of or to the inherent lack ofjurisdiction of civil court to entertain the suit. Hence, it has to be raised

Abefore the court of first instance at the earliest opportunity, and in allcases where issues are settled, on or before such settlement. Moreover,it is only where there is consequent failure of justice that an objectionas to the place of suing can be entertained. Both these conditions haveto be satisfied.

B10. The learned counsel appearing on behalf of the respondentshas submitted that the objection as to the lack of territorial jurisdictionwas raised in the written statement before the trial court. But evidentlythe suit was decreed ex-parte after the respondents failed to participatein the proceedings. The provisions of Section 21(1) contain clearlegislative mandate that an objection of this nature has to be raised at theCearliest possible opportunity, before issues are settled. Moreover, nosuch objection can be allowed to be raised even by an appellate orrevisional jurisdiction, unless both sets of conditions are fulfilled.

11. Learned counsel appearing on behalf of the respondent hasplaced considerable degree of reliance on the judgment of four JudgesDof this Court in Kiran Singh (supra).In that case, there was dispute inregard to the valuation of the suit. The issue would ultimately determinethe forum to which the appeal from the judgment of the trial court wouldlie. If the valuation of the suit as set out in the plaint was to be accepted,the appeal would lie to the district court. On the other hand, if theEvaluation as determined by the High Court was to be accepted, the appealwould lie before the High Court and not the District Court. It was in thisbackground that this Court held that as fundamental principle, decreepassed by court without jurisdiction is nullity and that its validitycould be set up wherever it is sought to be enforced or relied upon, evenat the stage of execution in collateral proceeding. Moreover, it wasFheld that defect of jurisdiction, whether pecuniary or territorial or whetherit is in respect of the subject matter of the action, strikes at the veryauthority of the court to pass the decree and cannot be cured even bythe consent of the parties.

The Court then proceeded to examine the effect of Section 11 ofGthe Suit Valuation Act 1887 on this fundamental principle. This Courtheld thus:

“7. Section 11 enacts that notwithstanding anything in Section 578of the Code of Civil Procedure, an objection that court whichhad no jurisdiction over suit or appeal had exercised it by reason

of overvaluation or undervaluation, should not be entertained byan appellate court, except as provided in the section...a decreepassed by court, which would have had no jurisdiction to hear asuit or appeal but for overvaluation or undervaluation, is not to betreated as, what it would be but for the section, null and void, andthat an objection to jurisdiction based on overvaluation orundervaluation, should be dealt with under that section and nototherwise. The reference to Section 578, now Section 99 CPC, inthe opening words of the section is significant. That section, whileproviding that no decree shall be reversed or varied in appeal onaccount of the defects mentioned therein when they do not affectthe merits of the case, excepts from its operation defects ofjurisdiction. Section 99 therefore gives no protection to decreespassed on merits, when the courts which passed them lackedjurisdiction as result of overvaluation or undervaluation. It iswith view to avoid this result that Section 11 was enacted. Itprovides that objections to the jurisdiction of court based onovervaluation or undervaluation shall not be entertained by anappellate court except in the manner and to the extent mentionedin the section. It is self-contained provision complete in itself,and no objection to jurisdiction based on overvaluation orundervaluation can be raised otherwise than in accordance withit. With reference to objections relating to territorial jurisdiction,Section 21 of the Civil Procedure Code enacts that no objectionto the place of suing should be allowed by an appellate or RevisionalCourt, unless there was consequent failure of justice. It is thesame principle that has been adopted in Section 11 of the SuitsValuation Act with reference to pecuniary jurisdiction. The policyunderlying Sections 21 and 99 of the Civil Procedure Code andSection 11 of the Suits Valuation Act is the same, namely, thatwhen case had been tried by court on the merits and judgmentrendered, it should not be liable to be reversed purely on technicalgrounds, unless it had resulted in failure of justice, and the policyof the legislature has been to treat objections to jurisdiction bothterritorial and pecuniary as technical and not open to considerationby an appellate court, unless there has been prejudice on themerits.” (Emphasis supplied)

12. Dealing with the question of whether decree passed onappeal by court which had jurisdiction to entertain it only by reason of

CDE

Aundervaluation or overvaluation can be set aside on the ground that on atrue valuation that court was not competent to entertain the appeal, theCourt held that mere change of forum is not ‘prejudice’ within Section11 of the Suits Valuation Act. This Court held thus:

“12. …it is impossible on the language of the section to come to aBdifferent conclusion. If the fact of an appeal being heard by aSubordinate Court or District Court where the appeal would havelain to the High Court if the correct valuation had been given isitself matter of prejudice, then the decree passed by theSubordinate Court or the District Court must, without more, beliable to be set aside, and the words “unless the overvaluation orCundervaluation thereof has prejudicially affected the disposal ofthe suit or appeal on its merits” would become wholly useless.These words clearly show that the decrees passed in such casesare liable to be interfered with in an appellate court, not in allcases and as matter of course, but only if prejudice such as isDmentioned in the section results. And the prejudice envisaged bythat section therefore must be something other than the appealbeing heard in different forum. contrary conclusion will leadto the surprising result that the section was enacted with the objectof curing defects of jurisdiction arising by reason of overvaluationor undervaluation, but that, in fact, this object has not beenEachieved. We are therefore clearly of opinion that the prejudicecontemplated by the section is something different from the factof the appeal having been heard in forum which would not havebeen competent to hear it on correct valuation of the suit asultimately determined.” (Emphasis supplied)

The Court disallowed the objection to jurisdiction on the groundthat no objection was raised at the first instance and that the party filingthe suit was precluded from raising an objection to jurisdiction of thatcourt at the appellate stage. This Court concluded thus:

“16. If the law were that the decree of court which would haveGhad no jurisdiction over the suit or appeal but for the overvaluationor undervaluation should be treated as nullity, then of course,they would not be stopped from setting up want of jurisdiction inthe court by the fact of their having themselves invoked it. That,however, is not the position under Section 11 of the Suits ValuationAct.”H

Thus, where the defect in jurisdiction is of kind which falls withinSection 21 of the CPC or Section 11 of the Suits Valuation Act 1887, anobjection to jurisdiction cannot be raised except in the manner and subjectto the conditions mentioned thereunder. Far from helping the case of therespondent, the judgment in Kiran Singh(supra) holds that an objectionto territorial jurisdiction and pecuniary jurisdiction is different from anobjection to jurisdiction over the subject matter. An objection to the wantof territorial jurisdiction does not travel to the root of or to the inherentlack of jurisdiction of civil court to entertain the suit.

13. In Hiralal v Kalinath[8], person filed suit on the originalside of the High Court of Judicature at Bombay for recoveringcommission due to him. The matter was referred to arbitration and itresulted in an award in favour of the Plaintiff. decree was passed interms of the award and was eventually incorporated in decree of theHigh Court. In execution proceedings, the judgment-debtor resisted it onthe ground that no part of the cause of action had arisen in Bombay, andtherefore, the High Court had no jurisdiction to try the cause and that allproceedings following thereon where wholly without jurisdiction and thusa nullity. Rejecting this contention, four judge Bench of this Court heldthus:

“The objection to its [Bombay High Court] territorial jurisdictionis one which does not go to the competence of the court and can,therefore, be waived. In the instant case, when the plaintiff obtainedthe leave of the Bombay High Court on the original side, underclause 12 of the Letters Patent, the correctness of the procedureor of the order granting the leave could be questioned by thedefendant or the objection could be waived by him. When heagreed to refer the matter to arbitration through court, he wouldbe deemed to have waived his objection to the territorial jurisdictionof the court, raised by him in his written statement. It is well settledthat the objection as to local jurisdiction of court does not standon the same footing as an objection to the competence of courtto try case. Competence of court to try case goes to thevery root of the jurisdiction, and where it is lacking, it is case ofinherent lack of jurisdiction. On the other hand, an objection as tothe local jurisdiction of court can be waived and this principle

8 AIR 1962 SC 199

[2019] 1 S.C.R.

Ahas been given statutory recognition by enactments like Section21 of the Code of Civil Procedure.”(Emphasis supplied)

In Harshad Chiman Lal Modi v DLF Universal Ltd.[9], thisCourt held that an objection to territorial and pecuniary jurisdiction hasBto be taken at the earliest possible opportunity. If it is not raised at theearliest, it cannot be allowed to be taken at subsequent stage. ThisCourt held thus:

“30. The jurisdiction of court may be classified into severalcategories. The important categories are (i) territorial or localCjurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction overthe subject-matter. So far as territorial and pecuniary jurisdictionsare concerned, objection to such jurisdiction has to be taken at theearliest possible opportunity and in any case at or before settlementof issues. The law is well settled on the point that if such objectionis not taken at the earliest, it cannot be allowed to be taken at aDsubsequent stage. Jurisdiction as to subject-matter, however, istotally distinct and stands on different footing. Where courthas no jurisdiction over the subject-matter of the suit by reason ofany limitation imposed by statute, charter or commission, it cannottake up the cause or matter. An order passed by court havingEno jurisdiction is nullity.”In Hasham Abbas Sayyad v Usman Abbas Sayyad[10], twojudge Bench of this Court held thus:

“24. We may, however, hasten to add that distinction must bemade between decree passed by court which has no territorialFor pecuniary jurisdiction in the light of Section 21 of the Code ofCivil Procedure, and decree passed by court having nojurisdiction in regard to the subject-matter of the suit. Whereas inthe former case, the appellate court may not interfere with thedecree unless prejudice is shown, ordinarily the second categoryof the cases would be interfered with.”GSimilarly, in Mantoo Sarkar v Oriental Insurance Co. Ltd[11],a two judge Bench of this Court held thus:

9 (2005) 7 SCC 791 10 (2007) 2 SCC 355H 11 (2009) 2 SCC 244

“20. distinction, however, must be made between jurisdictionwith regard to the subject-matter of the suit and that of territorialand pecuniary jurisdiction. Whereas in the case falling within theformer category the judgment would be nullity, in the latter itwould not be. It is not case where the Tribunal had no jurisdictionin relation to the subject-matter of claim…in our opinion, the courtshould not have, in the absence of any finding of sufferance ofany prejudice on the part of the first respondent, entertained theappeal.”

14. The objection which was raised in execution in the presentcase did not relate to the subject matter of the suit. It was an objection toterritorial jurisdiction which does not travel to the root of or to the inherentlack of jurisdiction of civil court to entertain the suit. An executingcourt cannot go behind the decree and must execute the decree as itstands. In Vasudev Dhanjibhai Modi v Rajabhai Abdul Rehman[12],the Petitioner filed suit in the Court of Small Causes, Ahmedabad forejecting the Defendant-tenant. The suit was eventually decreed in hisfavour by this Court. During execution proceedings, the defendant-tenantraised an objection that the Court of Small Causes had no jurisdiction toentertain the suit and its decree was nullity. The court executing thedecree and the Court of Small Causes rejected the contention. The HighCourt reversed the order of the Court of Small Causes and dismissedthe petition for execution. On appeal to this Court, three judge Benchof this Court, reversed the judgment of the High Court and held thus:“6. court executing decree cannot go behind the decree:between the parties or their representatives it must take the decreeaccording to its tenor, and cannot entertain any objection that thedecree was incorrect in law or on facts. Until it is set aside by anappropriate proceeding in appeal or revision, decree even if itbe erroneous is still binding between the parties.

8. If the decree is on the face of the record without jurisdictionand the question does not relate to the territorial jurisdiction orunder Section 11 of the Suits Valuation Act, objection to thejurisdiction of the Court to make the decree may be raised; whereit is necessary to investigate facts in order to determine whetherthe Court which had passed the decree had no jurisdiction to

Aentertain and try the suit, the objection cannot be raised in theexecution proceeding.”

15. In this background, we are of the view that the High Courtwas manifestly in error in coming to the conclusion that it was within thejurisdiction of the executing court to decide whether the decree in theBsuit for partition was passed in the absence of territorial jurisdiction.

16. The respondent has filed first appeal (First Appeal No. 43/2015) where the issue of jurisdiction has been raised. We must clarifythat the findings in the present judgment shall not affect the rights andcontentions of the parties in the first appeal.

17. The High Court has manifestly acted in excess of jurisdictionin reversing the judgment of the executing court which had correctlydeclined to entertain the objection to the execution of the decree on theground of want of territorial jurisdiction on the part of the court whichpassed the decree.

18. We have also not found merit in the contention that theimpugned order of the High Court, being an order of remand, is in thenature of an interlocutory order which does not brook any interference.By the impugned order, the High Court has directed the executing courtto entertain an objection to the validity of the decree for want of territorialEjurisdiction. Such an objection would not lie before the executing court.Moreover, the objection that the property at Ranchi did not belong to thecommon ancestor is matter of merits, which if at all, has to be raisedbefore the appropriate court in the first appeal.

19. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court. The executing courtFshall conclude the execution proceedings expeditiously. There shall beno order as to costs.

Divya Pandey

Appeal allowed.