1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CIVIL REVISION APPLICATION NO. 50 OF 2008 ( Smt. Kalawati Ghanshyam Lanjewar vs. Natthu Marotrao Dharmik ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. AUGUST 22, 2008. Heard Shri M.G. Bhangde, Senior Advocate with Shri V.V. Bhangde, Advocate for the applicant - original defendant and Shri Jetha, Advocate for the non-applicant/ original plaintiff – decree holder. On 6.6.2008, while granting interim relief in this matter, this Court has observed that the matter may be disposed of finally at the stage of admission itself. Accordingly, I have heard advocates for the parties on 11.8.2008 and then on the request of Shri Jetha, Advocate, time was given to him till 13.8.2008 and thereafter till today. The Non-applicant filed a suit for specific performance of contract vide Regular Civil Suit No. 500 of 2002 in the Court of 3rd Joint Civil Judge, Junior Division, Nagpur, on 21.03.2003. The revision applicant – defendant in said suit did not appear and did not contest the proceedings. The 2 suit was decreed on 1.10.2003 and as there was no appeal filed, the said judgment and decree became final. The non-applicant then took out execution and sale deed has also been registered by the Court in his favour therein. The present revision applicant – original defendant appeared in those execution proceedings and filed various objections from time to time. She also filed application for setting aside ex parte judgment and decree which came to be rejected. In said execution i.e. Regular Darkhast No. 41 of 2004, the present revision applicant filed application at Exh. 41 pointing out that the subject matter of the suit i.e. property was situated in Saoner Tahsil, therefore, the Court at Nagpur has no jurisdiction over the subject matter and therefore cognizance taken and decree passed is null and void. The said objection was opposed by the present non-applicant/ original plaintiff and 6th Joint Civil Judge, Junior Division, Nagpur, by the impugned order dated 11.4.2008 has rejected that application at Exh. 41. Thereafter, the present revision application has been filed. The learned Senior Advocate has contended that the objection was in the light of provisions of Section 16(1)(c) of Civil Procedure 3 Code and as such the view taken by the learned lower Court in impugned order is unsustainable. He places reliance upon the judgment of the Hon'ble Apex Court in the case of Harshad Chiman Lal Modi vs. DLF Universal & Anr., reported at 2005 (7) Scale 533. He points out that the provisions of Section 21 are held to be not applicable when the Court lacks jurisdiction on the subject matter of the property. Shri Jetha, Advocate on the other hand contends that in view of Section 21 of Civil Procedure Code, the objection as to place of suit has to be taken at the earliest possible opportunity. He further points out that number of objections were taken during the execution and this objection was not taken at the earliest possible opportunity. He further places reliance upon the fact that the application for setting aside ex parte judgment has been rejected and that order has also become final. In addition, he points out that sale deed in terms of the judgment and decree is also registered and executed in favour of present non-applicant – original plaintiff/ decree holder. In this background, he places reliance upon the judgment of the Hon'ble Apex Court in the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rahman & Ors. reported at AIR 1970 SC 1475 (1970 (1) SCC 670), particularly 4 paras 6 & 7 to contend that several disputed questions of fact arise and hence objection of such a nature cannot be allowed to be raised in execution that too at belated stage. He, therefore, prays for dismissal of Civil Revision Application. A perusal of judgment of the Hon'ble Apex Court in the case of Vasudev Dhanjibhai Modi vs. Rajabhai Abdul Rahman & Ors clearly reveals that the observations made therein will be attracted if the decree holder succeeds in showing that the facts which fall for consideration are disputed. In the present case, it is not in dispute that the property forming subject matter of suit is not situated in Nagpur Tahsil but at Saoner Tahsil and therefore, Court at Nagpur has no jurisdiction at all in terms of the provisions of section 16(1)(c) of CPC and therefore, the suit ought to have been filed before the Saoner Court. The judgment in Harshad Chiman Lal Modi vs. DLF Universal & Anr., (supra) on which the learned Senior Advocate has placed reliance, considers the similar situation and it has been held that in view of specific provisions of Section 16 of C.P.C., Section 20 of C.P.C. would not apply and an objection on the lines as sought to be raised by Shri Jetha, Advocate for the non-applicant has been 5 considered in paras 28 and 29 and has been expressly overruled. Observations of the Hon'ble Apex Court in paras 15, 17 and 18 clinch the controversy before me. I, therefore, find that when the Court lacks inherent jurisdiction because of Section 16 of Civil Procedure Code, the Court could not have taken cognizance and the judgment and decree passed in the suit is, therefore, null and void and cannot be executed. The application at Exh. 41 filed by the present applicant in R.D. No. 41 of 2004, therefore, has been erroneously rejected. Accordingly, the order dated 11.04.2008 is hereby quashed and set aside. The application at Exh. 41 in Regular Darkhast No. 41 of 2004 is hereby allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. JUDGE *GS.