1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3625 OF 2008 Rusi Sorab Irani ...Petitioner vs. 1 Yezdi Khodaram Irani 2 Mohamad Ali Gulam Ali Sidhpura ...Respondents Mr.G.N.Salunke for the petitioner Mr.A.V.Anturkar with Mr.S.B. Deshmukh for respondent no.1 WRIT PETITION NO.5442 OF 2009 1)Yezdi Khodaram Irani 2)Rohington Khodaram Irani ...Petitioners vs. Rustam Sorab Irani ...Respondent Mr.A.V.Anturkar with Mr.S.B.Deshmukh for the petitioners Mr.G.N.Salunke for the respondent CIVIL REVISION APPLICATION NO.395 OF 2008 1 Mr.Rusi Sorab Irani 2 Pervin Jilla ...Petitioners vs. 1 Mr.Yezdi Khadaram Irani 2 Rohinton Khodaram Irani ...Respondents Mr.G.N.Salunke for the petitioners Mr.A.V.Anturkar with Mr.S.B.Deshmukh for the respondents CORAM :A.S.OKA,J. DATE : SEPTEMBER 25, 2009 JUDGMENT : 1 On 27th August 2008 the petitions were finally heard and today the same are kept for dictation of Judgment. These petitions can be conveniently disposed of by a common order. The parties are hereinafter referred to with reference to their status in writ petition 2 no.3625 of 2008. Mr. Rusi Sorab Irani is the Petitioner and Mr. Yezdi Khodaram Irani is the first respondent. One Mr.Sorab Irani was the owner of the certain property in Mumbai as well as in Matheran in District Raigad. There are three properties subject matter of the dispute. The said properties are as under : a)i) Leasehold property bearing Survey No.40 situated at Matheran, District Raigad along with the structures standing thereon known on Cecil Hotel. ii)land bearing City Survey No.58 and 59 along with building known as Phiroja Mansion situated at 181, Alibhai Premji Marg, Opp. Grant Road Railway Station, Grant Road (East), Mumbai 400 007 and; b)ii) Two rented premises, being shops bearing nos.26 and 27, situated at Shirin Mansion, 56/64, Naushir Bharucha Marg, Opp. Grant Railway Station, Grant Road (West), Mumbai 400 007. 2 The said Sorab Irani died in the year 1967. The said Sorab was survived by the Petitioner (son), Khodaram (son) and Pervin (daughter).The said Khodaram died in the year 2002. Yezdi(referred to as the first respondent) and Rohington who are the petitioners in Writ Petition no.5442 of 2009 are the sons of Khodaram. The said Khodaram filed a petition in this Court for appointment of administrator. The said Khodaram was appointed as an Administrator. The said Khodaram died in the year 2002. It must be stated here that the petitioner and the first respondent filed separate petitions in this Court for seeking their appointment as administrators of the property of the deceased Sorab. In the said petitions, an interim order was passed by this Court by which the petitioner was appointed as an interim administrator of the estate of the deceased. There was an appeal preferred by the first respondent 3 against the said order. It appears that in the appeal there was a compromise between the parties and a decree in terms of the compromise was passed on 9th October 2006. Relevant clauses in the consent decree read thus : “2) The aforesaid estate is divided into two equal parts. One part belonging to Mr.Rustom @ Rusi Sorab Irani and his sister Mrs.parvin P. Jilla and the other Mr.Yazdi Khodaram Irani and his brother Mr.Rohington Khodaram Irani. 3) It is agreed by and between the parties that Mr.Rustom @ Rusi Sorab Irani and his sister Mrs.Pervin P. Jilla shall have 100% right, title and interest in the land survey No.40 situated at Matheran, District Alibag along with structures standing thereon known as Cecil Hotel. 4) It is agreed by and between the parties that Mr.Yazdi Khodaram Irani with his brother Mr.Rohington Khodaram Irani shall have 100% right, title and interest in the properties (i) land bearing City Survey nos.58 and 59 along with building known as Phiroja Mansion situate at 181 Alibhai Premji Marg, Opp. Grant Road Railway Station, Grant Road (East), Mumbai 400 007 and (ii) Two rented premises being shops bearing Nos.26 and 27 situate at Shirin Mansion, 56/64, Naushir Bharucha Marg, Opp. Grant Road Railway Station, Grant Road (West), Mumbai 400 007. 5) The parties agree to get the properties transferred to their names at their own costs and expenses and both the parties shall fully co-operate with each other for effectual transfer of the aforesaid properties as per clauses 3 and 4 above. 4 Mr.Yazdi Khodaram Irani and Mr.Rohington Khodaram Irani shall co-operate in getting the licences in respect of Hotel Cecil situate at Matheran, District Alibag, transferred to the names of Mr.Rustom @ Rusi Sorab Irani and Mr.Pervin P. Jilla. The parties agree to withdraw all the proceedings filed against each other in the Court of law or with police authorities.” 3 It appears that even after the compromise, the dispute did not come to an end. The petitioner applied to this Court for transfer of the aforesaid consent decree for execution. This Court transferred the decree to the Court of the Civil Judge (Junior Division), Karjat in as much as the property at Matheran in respect of which the decree was sought to be executed was situated within the jurisdiction of that court. After transfer of decree , an application for execution was filed by the petitioner. The first relief sought in the application was that that the formal possession of premises of Hotel Cecil be handed over to the petitioner in as much as though he was in possession, the first respondent was obstructing the possession. The second prayer was for appointment of the court commissioner for getting the licence of the hotel transferred in the name of the petitioner. 4 The said application for execution was opposed by the first respondent by filing a reply. One of the contentions raised in the reply was that as and when the petitioner will comply with his obligations in the consent terms in respect of transfer of the two shop premises, the first respondent will comply with his obligations. 5 By order dated 28th march 2008 , the Trial Court appointed an Advocate as Court Commissioner for doing the ministerial work of applying for the transfer of the license of the hotel in the name of 5 the petitioner . However, the other prayer made by the petitioner for delivery of the formal possession of the hotel premises was not granted. The same was not granted on the ground that the petitioner was already put in possession and that any subsequent obstruction by the first respondent would give rise to a separate cause of action. It appears that after the said order was passed , on 17th April 2008 by making an application in writing, the first respondent raised an objection to the jurisdiction of the trial court to entertain the execution application. It must be stated here that Misc. Civil Appeal no.53 of 2008 was filed by the first respondent before the district court for challenging the aforesaid order dated 28th March 2008. An objection was raised by the petitioner to the maintainability of the said appeal. Under the orders of this Court, the appeal has been withdrawn from the District Court and the same has been ordered to be heard by this Court along with Writ Petition no.3685 of 2009. The papers of the appeal were received by this court and the office has numbered the same as Writ Petition no.5442 of 2009. The Writ Petition no.3625 of 2008 has been filed by the petitioner being aggrieved by the part of the order of the executing court declining to grant relief of delivery of possession. The application made by the petitioner raising an objection to the maintainability of the appeal filed in the District Court was decided against him by an order dated the 5th May 2008. The challenge in the C.R.A. no.395 of 2008 preferred by the petitioner and the said Pervin is to the said order passed by the learned principal District Judge on application raising objection to the maintainability of the appeal. 6 The learned counsel for the petitioner in support of the writ petition no.3625 of 2009 and the revision application contended that the possession of the petitioner of the hotel premises was in his capacity as an administrator appointed as per the order passed by this Court. Inviting my attention to the consent decree, he submitted that the petitioner ought to have been placed in possession of the hotel premises. He submitted that the objection to 6 the jurisdiction of the court raised by the first respondent was after an order was passed on 28th March 2008 on merits of the execution application and it was too late in the day to raise objection. Inviting my attention to the provisions of the Indian Succession Act,1925 (hereinafter referred to as the said Act of 1925) and the Bombay Civil Courts Act,1869, he submitted that the Court of Civil Judge Junior Division, Karjat had jurisdiction to entertain the said execution application. He invited my attention to the further affidavit filed by the petitioner in the writ petition no. 3625 of 2008 and submitted that the petitioner has complied with his part of the order sought to be executed by depositing the keys of shop nos 26 and 27 with the district court at Raigad. 7 The learned counsel for the first respondent in the writ petition no.3625 of 2008 and the petitioners in writ petition no.5442 of 2009 invited my attention to the provisions of the said Act of 1925. He submitted that the Civil Judge Junior Division is not empowered to act as a district delegate. He submitted that even according to the relevant provisions of the Civil Manual, the said Court has no jurisdiction in as much as going by the pecuniary jurisdiction of the Civil Courts and considering the valuation of the property in dispute , the execution application was maintainable only in the Court of Civil Judge Senior Division. He submitted that there is no decree of possession passed in favour of the petitioner and the petitioner is already in possession. He submitted that even according to the petitioner , the first respondent has dispossessed the petitioner, and therefore his remedy is to file appropriate proceedings. He submitted that the appeal before the District Court was maintainable. 8 The learned counsel for the petitioner responded that the petitioner was never placed in possession on the basis of the consent decree and his possession was as the administrator. He submitted that there is no provision under which the order passed on execution 7 application could have been subjected to an appeal. 9 I have given careful consideration to the submissions. A decree has been passed in the proceedings for grant of letters of administration under the said Act of 1925. Under section 264 (1) of the said Act , the District Judge has jurisdiction to grant the probate and letters of administration in all cases within the district. Under sub- section 1 of section 265 of the said Act of 1925, this Court is empowered to appoint certain judicial officers within any district to act for the district judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribed. It will be also necessary at this stage to consider the provisions of the said Act of 1869. Section 28 Aof the said Act of 1869 reads thus : “28A Power to invest[ Civil Judges ]with jurisdiction under certain Acts (1) The High Court may by general or special order invest any (Civil Judge), within such local limits and subject to such pecuniary limitation as may be prescribed in such order, with all or any of the powers of a District Judge or a District Court as the case may be under the Indian Succession Act, 1865, The Probate and Administration Act, 1881 or paragraph 3 of schedule III of the Code of Civil Procedure, 1908” 10 Under sub- section 1 of section 28(A), a power is conferred on the High Court to invest Civil Judges with any or all the powers of the District Judge under the Indian Succession Act,1865 as well as under the Probate and Administration Act 1881. Sub section 1 does not refer to the said Act of 1925. It is not in dispute that Indian Succession Act, 1865 and the Probate and Administration Act 1881 has been repealed by the said Act of 1925. On this aspect, it will be 8 necessary to refer to section 8 of the General Clauses Act, 1897 which reads thus : Section 8. Construction of references to repealed enactments Construction of references to repealed enactments.— 1[(1)] 2Where this Act, or any 3[Central Act] or Regulation made after the commencement of this Act, re- peals and re-enacts, with or without modification, any provision of a former enact- ment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. 4[(2) 5[Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-enacted], with or without modification, any pro- vision of a former enactment, then reference in any 6[Central Act] or in any Regula- tion or instrument to the provision so repealed shall, unless a different intention ap- pears, be construed as references to the provision so re-enacted.] In view of the repeal of the said Acts of 1865 and 1881 referred to in section 28A of the said act of 1869, as per sub section 1 of section 8 of the General Clauses Act, the reference to the repealed Acts in sub- section 1 of section 28A will have to be construed as a reference to the said Act of 1925. Therefore, the power under sub- section 1 of section 28-A of this Court will have to be read as a power to invest powers of District Judge under the said Act of 1925 in any Civil Judge. 11 It will be worthwhile to consider the relevant provisions of Civil Manual. Paragraph 305 of the Civil Manual reads thus : 305 (i) Under section 265 of the Indian Succession Act,1925, the High has appointed all Civil Judges to act for the District Judge as delegates to grant probate and letters of administration in non contentious cases arising within the local limits of their respective jurisdiction. (ii) In exercise of the powers conferred by Section 28-A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Senior Division), with all the powers of a District Judge to take cognizance of any contested proceeding under Indian Succession Act,1925, arising within the local limits of their respective jurisdiction that may be transferred to them by their respective District Judges. 9 (iii) In exercise of the powers conferred by section 28-A(1) of the Bombay Civil Courts Act (XIV of 1869), the High Court has invested all Civil Judges (Junior Division) with all the powers of a District Judge in the matter of issuing Succession Certificate limited to debts and securities to the extent of their pecuniary jurisdiction. Clause (i) does not make any distinction between Civil Judges (Junior Division) and Civil Judges (Senior Division). Therefore, the power has been conferred on both the categories of Civil Judges to deal with non-contentious cases. Thus, in exercise of powers conferred on this Court under section 265 of the said act of 1925, all Civil Judges including the Civil Judges( Junior Division) have been appointed as delegates to act for the District Judge to grant probate and letters of administration in non-contentious cases irrespective of the value of the property held by the deceased. 12 Now turning to the orders earlier passed in these petitions, it must be noted that this Court had directed to the Registrar( Judicial- I) to supply copies of the notifications issued by this court which are referred to in paragraph 305 of the Civil Manual. The Registrar (Judicial-I) tried his level best to secure the copies of notifications. However, it was revealed that the copies of the notifications are not available. The Registrar (judicial-I) ascertained from the registry of the benches of this court at Nagpur and Aurangabad as to whether copies of notifications are available. However even with the benches, copies of the notification are not available. He also tried to get copies of the notifications from the various District Courts in Maharashtra. However, notifications are not available. One cannot dispute the existence of the notifications which are referred to under clause (i) and clause (ii) of paragraph 305 of the Civil Manual. Thus, all Civil Judges were conferred powers of the District Judge to grant 10 probate or letters of administration in non-contentious cases. In case of contentious cases, the jurisdiction has been conferred on the Civil Judges (Senior Division). 13 It is not in dispute that the decree was passed by this Court in the proceedings for letters of administration by consent of the par- ties. Therefore, in that sense, the proceeding cannot be construed as a contentious proceeding . Therefore in view of clause (i) of para- graph 305 of the Civil Manual, the proceeding could have been en- tertained by a civil judge having territorial jurisdiction. Objection of Shri Anturkar, the learned counsel for the first respondent was that in such a case, only the Civil Judge (Senior Division )will have to pe- cuniary jurisdiction to entertain the said execution application. When execution application was heard on merits, no such objection was raised by the first respondent in as much as his reply dated 10th March 2008 filed to the execution application is silent about it. The objection appears to have been raised after order dated 28th of March 2008 in execution application was passed. The said objection is raised by way of an application filed filed on 17th April 2008. The said objection was to the pecuniary jurisdiction of the Court of Civil Judge (Junior Division). In view of section 21(2) of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code), the said objection ought to have been raised at the earliest possible opportu- nity. In the present case, the petitioner contested the said Darkhast application without raising any such objection And only after an or- der was passed on 28th March 2008 dealing with the merits of the ex- ecution application, the said objection has been belatedly raised. It 11 will be necessary to make a reference to the decision of the Apex Court in the case of Kiran Singh Vs. Chaman Paswan (AIR 1954 SC 340). The Apex Court held thus: “Section 21 of the Civil Procedure Code enacts that no objection to the place of suing should be allowed by an appellate or Revisional Court, unless there was a con- sequent failure of justice. It is the same principle that has been adopted in Section 11 of the Suits Valuation Act with reference to pecuniary jurisdiction. The policy un- derlying Sections 21 and 99 of the Civil Procedure Code and Section 11 of the Suits Valuation Act is the same, namely, that when a case had been tried by a court on the merits and judgment rendered, it should not be liable to be re- versed purely on technical grounds, unless it had resulted in failure of justice, and the policy of the legislature has been to treat objections to jurisdiction both territorial and pecuniary as technical and not open to consideration by an ap- pellate court, unless there has been a prejudice on the merits. The contention of the appellants, therefore, that the decree and judgment of the District Court, Monghyr, should be treated as a nullity cannot be sustained under Section 11 of the Suits Valuation Act.” (emphasis added) A reference will have to be made to the decision in case Prabhakar Vishnu Naik Vs. Union of India (AIR 1970 Bombay page 285). Paragraph 5 of the said decision reads thus : “5 The first and foremost argument made by Mr.Tambe, for the appellant, is that the learned Joint Judge was in error in holding that the Trial Court had no jurisdiction to try the suit and returning the plaint for presentation to the proper Court. In this connection, it has been pointed out to me that originally the Trial Court had returned the plaint holding that it had no territorial jurisdiction to deal with the matter and that the plaintiff had appealed to the District Court which reversed the finding of the trial court and held that the Court of Civil Judge Senior Division, Ahmednagar had jurisdiction to deal with the matter. Mr.Tambe rightly argues that this finding was conclusive so far as the learned Judge was concerned and he would not be entitled to reopen the 12 finding and hold that the Trial Court had no territorial jurisdiction. Mr.Pratap , Assistant Government Pleader, for the State fairly conceded that that would be so. Apart from this, in every case where the question of territorial jurisdiction arises the Court cannot lose sight of Section 21 of the Code of Civil Procedure and unless it is shown that by reason of the suit having been instituted in a forum which has no territorial or pecuniary jurisdiction, prejudice has been caused to the other party, such a point cannot be entertained at the appellate stage. Even apart from this, the subject matter of the suit was the proclamation and the sale proceedings and action taken by the Mamlatdar in that district, and only that Court would have jurisdiction. In my view, the learned appellate Judge was wrong in holding that the Trial Court had no jurisdiction to determine the merits of the matter. “ (emphasis added) In the present case, as stated earlier an objection was raised after an order was passed on execution application. The said objection was raised by the first respondent after an order was passed by the learned judge on merits of the execution application. By the said order dated 28th of March 2008, a prayer made in execution application was rejected and another prayer was granted by appointing an advocate as the court Commissioner. Such objection was raised by the first respondent after contesting the execution application on merits. As stated earlier the objection was only as regards the pecuniary jurisdiction of the court of the learned at civil judge (junior division). Such objection ought to have been raised at the earliest. In any event unless failure of justice is shown the order of the executing court cannot become nullity or illegal on the ground of lack of pecuniary jurisdiction. Such objection raised belatedly can be considered provided it is shown that there is a failure of justice . 13 In the present case no such prejudice or the failure of justice has been established by the first respondent. 14 It is true that clause (ii) of the paragraph 305 of the Civil Manual notes that this Court has conferred jurisdiction to deal with contentious cases on the Court of Civil Judge Senior Division. However, the said objection will be valid provided it is held that the case was a contentious case . Even otherwise, the objection based on said clause (ii) is an objection regarding pecuniary jurisdiction of the Court. The power of this Court under sub section 1 of section 28- A is to invest jurisdiction of the District Judge in any Civil Judge. He may be either a Civil Judge Junior Division or a Civil Judge Senior Division. Looking at any angle, the objection to the jurisdiction of the executing court has no merit and the same cannot be entertained. 15 At the same time, it must be noted that the notifications issued by this court both under the provisions of the said Act of 1925 and the said Act of 1869 are not available in any court in the entire State. The Registrar Judicial-I will have to bring this aspect to the notice of the Hon’ble the Chief Justice on administrative side. As a result of