1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.403 OF 2008 Sau Seema Vilas Patil .... Applicant Vs. Shri Appaso Balu Latthe & Ors. .... Respondents Mr. V.B. Rajure, Advocate for Applicant. Mr. A.B. Vagyani, Advocate for Respondent No.1. Coram : SMT. R.P. SONDURBALDOTA,J. Date : 24th September, 2008 P.C. 1. Heard both the counsels. 2. The applicant and respondent No. 2 are judgment debtors in Special Darkhast No.12 of 2007 pending in the Court of Civil Judge, Senior Division, Ichalkaranji for execution of decree in Special Civil Suit No.121 of 2004. By the said decree, the judgment debtors have been directed to pay a sum of Rs.5,00,000/- with interest at the rate of 6% per annum to the decree holder. On 6th October, 2007, the applicant filed an application under Section 47 of The Code of Civil Procedure for a declaration that the decree is nullity as it is passed by a Court having no territorial jurisdiction. This application came to be rejected by the order dated 27th 2 February, 2008, impugned in the present Civil Revision Application. 2. The undisputed facts of the matter are that the decree holder had filed suit for specific performance of contract pertaining to the property situate within the limits of village Kabnoor, Taluka Hatkanangle, Dist. Kolhapur. In the alternative, he had prayed for refund of earnest amount of Rs.5,00,000/- with interest. The suit was originally filed in the Court of Civil Judge, Senior Division, Kolhapur which at the relevant time i.e. in the year 2003 had territorial jurisdiction to entertain and try the same. Later on, with the establishment of the Court of Civil Judge, Senior Division at Jaysingpur, by the administrative order of the learned District Judge, the suit was transferred to that Court. On 19th June, 2005, the Court of Civil Judge, Senior Division came to be established at Ichalkaranji, which Court got territorial jurisdiction over village Kabnoor in which the suit property is situate. However, the suit was not transferred from the Court at Jaysingpur to the Court at Ichalkaranji. It was heard by the Court at Jaysingpur and finally disposed off by the judgment and decree dated 14th February,2007. During the course of trial, none of the 3 judgment debtors had raised objection to the territorial jurisdiction of the Court of Civil Judge, Senior Division, Jaysingpur. 3. The provisions as regards the objections to jurisdiction are contained in Section 21 of Civil Procedure Code. The part of Section 21 relevant for the present purposes reads as follows : “21. Objections to jurisdiction – [(1)] No objection as to the place of suing 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.” . Under the terms of the above section, it is clear that for the Appellate or Revisional Court to consider objections to the place of suing two conditions must be fulfilled. The first condition is that the objection was taken in the court of the first instance at the earliest possible opportunity and not later than settlement of issues. The second condition is that there is consequent failure of justice. In the instant case, both the conditions stand unfulfilled. The suit was decreed about two years after establishment of the Court at Ichalkaranji which according to the applicant had territorial jurisdiction to entertain and try the 4 same. The revision-applicant not only did not take any objection but also participated in the trial. She thus took a chance of obtaining favourable verdict. Therefore, she cannot be heard to say that any prejudice was caused to her or there was any failure of justice. Further, perusal of her application filed under Section 47 shows that it is not even avered therein that any prejudice was caused to her or there was any failure of justice. The learned trial Judge has rightly appreciated these facts and further referred to the distinction between lack of territorial jurisdiction and lack of inherent jurisdiction i.e. competency to try the suit. He has observed that mere lack of jurisdiction does not always go to the root of the case, but competency to try the suit or lack of inherent jurisdiction goes to the root of the case. He has further observed that the initial present of the suit in the Court at Kolhapur was proper. Its' transfer to the Court of Civil Judge, Senior Division, Jaysingpur, after the same was newly established was also proper. The transfer was on administrative count. If the same was not further transferred, on establishment of the court at Ichalkaranji it cannot be said that the court to which it was initially presented and also the court at Jaysingpur to which it was transferred lacked competancy 5 to try the suit. Only the further administrative order to transfer the suit to Ichalkaranji remained to be passed by the District Court. In the circumstance, no interference is called for with the impugned order. The Civil Revision Application is dismissed. [SMT.R.P.SONDURBALDOTA, J]