Must leave under Clause 12 of the Letters Patent be obtained where the suit properties are situate within the ordinary original jurisdiction?

The revision petitioner is the judgment debtor No.8 in E.P.No.2221 of 2018. Aggrieved by the dismissal of E.A.No.2 of 2022, the present revision petition has been filed.

I have heard Mr.K.S.V.Prasad, learned counsel for the petitioner/8th defendant and Mr.K.V.Sundararajan, learned counsel for the 1 st respondents and Mr.K.Selvaraj, learned counsel for the 3rd respondent.

The gist of the submissions made by the learned counsel for the revision petitioner are as hereunder:

In support of his submissions, the learned counsel for the petitioner has relied on the following decisions: 1. Sharda Devi Vs. State of Bihar, reported in CDJ 2002 SC 234. 2. Laliteshwar Singh Vs. Rameshwar Singh, reported in (1907) ILR 34CAL 619. 3. Central Bank of India Vs. Joseph and others, reported in 1997 (II) CTC 1. 4. M/s.Raj and Associates and another Vs. Videsh Sanchar Nigam Limited and another in FAO(OS).No.340-341 of 2005 dated 29.04.2009.

A.Z.Mohammed Farooq Vs. The State Government, reported in AIR 1984 Kerala 126.

Cofex Exports Limited Vs. Canara Bank, reported in AIR 1997 Delhi 355.

Indirani and another Vs. Raja @ Annadurai, reported in (2019) 8 MAD LJ 263. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

Minor R.Boopathy and others Vs. Ranjeetham and others in CRP(PD).No.4336 of 2018 dated 20.09.2019.

Mahesh Gupta Vs. Ranjit Singh and others, reported in AIR 2010 Delhi 4.

Makhan Lal Bangal Vs. Manas Bhunia and others, reported in AIR 2001 SC 490.

Kiran Singh and others Vs. Chaman Paswan and others, reported in CDJ 1954 SC 115.

Kesar Singh Vs. Sadhu, reported in CDJ 1996 SC 408.

Deva Sahayam (D) by L.Rs Vs. P.Savithramma and others, reported in CDJ 2005 SC 670.

K.Jayalakshmi Rao Vs. Dasaprakash Paradise in Transfer Application No.5010 of 2014 dated 17.02.2015.

V.Ramamirtham Vs. Rama Film Service, reported in AIR 1951 MAD 93. 5. Per contra, Mr.K.S.V.Sundararajan, learned counsel appearing for the 1 st respondent-decree holder would submit that the Civil Civil Court had the territorial jurisdiction to try the suit even in the first place, since the immovable properties, which are subject matter of the suit, are admittedly lying within the jurisdiction of the Civil Civil Court at Chennai. He would therefore contend that merely because leave was sought for in respect of some defendants, who are residing outside the jurisdiction of this Court, there was no embargo for the suit to be transferred to the City Civil Court. He would further submit that the petitioner, along with her mother, had moved an application in I.A.No.116 of 2012 before the City Civil Court, seeking to set aside the ex-parte decree passed in O.S.No.4980 of 2011 and also seeking restoration of the counter claim. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) 6. The learned counsel for the 1st respondent would further submit that no objection with regard to the jurisdiction, on account of the value of the counter claim had been raised in the said affidavit. The learned counsel would therefore state that the issue of jurisdiction, on account of the Court not having the necessary pecuniary jurisdiction, ought to have been raised at the earliest instance and having not done so, Section 21 of CPC places an impediment on the petitioner to thereafter rake up the said issue. The learned counsel would further state that the execution petition has also been laid only in respect of a decree in the suit and not in a manner relating to the counter claim, which too was filed only by the respondents 1 to 4 and not the revision petitioner. He would therefore state that it is not open to the 8 th respondent, who admittedly did not file a counter claim to take advantage of the filing of the counter claim for a value admittedly exceeding the pecuniary jurisdiction of the City Civil Court. In support of his submissions, the learned counsel has relied on the following decisions: 1. Sneh Lata Goel Vs. Pushpalatha and others, reported in (2019) 3 SCC 594. 2. Brakewel Automotive Components (INDIA) Private limited Vs. P.R.Selvam Alagappan, reported in (2017) 5 SCC 371. 3. Haryana Vidyut Prasaran Nigam Limited and another Vs. Gulshan Lal and others, reported in (2009) 13 SCC 354. 4. Darshan Singh Vs. State of Punjab, reported in (2007) 14 SCC 262. 5. Bhawarlal Bhandari Vs. Universal Heavy Mechanical Lifting Enterprises, reported in (1999) 1 SCC 558. 6. K.Jayalakshmi Rao and others Vs. Dasaprakash Paradise and others in Transfer Application No.5010 of 2014 dated 17.02.2015. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) 7. Mr.K.Selvaraj, learned counsel appearing for the 3 rd respondent, one of the brothers, would state that believing the words of the eldest brother, the plaintiff, who is the 1st respondent in the revision petition, the other brothers had agreed for an amicable partition. However, taking undue advantage of the confidence and trust reposed by the brothers, the 1st respondent has taken them for granted and allotted them ‘C’ schedule property jointly, while taking valuable ‘A’ and ‘B’ schedule properties. He would further state that even today, the brothers do not want to take up arms against their eldest brother and they only seek for some reasonable settlement. However, pending revision, the 3rd respondent has amicably resolved his disputes with the eldest brother and I am also informed that all the brothers have no claims against the 1 st respondent, who has agreed to pay them some agreed additional compensation. 8. I have carefully considered the submissions advanced by the learned counsel on either side. 9. With regard to the first submission relating to Clause 12 of the Letters Patent, Clause 12 reads as follows:

It is however, the counter submission by Mr.K.V.Sundararajan that the petitioner did not file any counter claim and the counter claimants themselves are not aggrieved and have not taken any steps to question the decree in the suit or the dismissal of the counter claim. In fact, as pointed out by Mr.K.V.Sundararajan, the petitioner, along with her mother took out an application in I.A.No.116 of 2012, seeking to set aside the ex-parte decree and also to restore the counter claim.

Admittedly, I find from the copy of the affidavit and petition to the said IA that the present revision petitioner also joined the other defendants in seeking to set aside the ex-parte decree. In the affidavit, there is no objection taken that the Court did not have the pecuniary jurisdiction to take up the matter and decide the same.

Section 21 of CPC is usefully extracted hereunder:

Any objection with regard to pecuniary jurisdiction ought to be raised at the earliest instance. As rightly contended by Mr.K.S.V.Prasad, since the suit was filed before the Original Side of this Court, there was no occasion for invoking Section 21 of CPC at that point of time. However, at least when the suit was transferred to the City Civil Court and an ex-parte decree came to be passed and thereafter, the petitioner along with the other defendants attempted to set aside the ex-parte decree, they ought to have taken up the objection with regard to pecuniary jurisdiction of the City Civil Court. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

On a careful perusal of the affidavit in I.A.No.116 of 2012, I am unable to see that any such objection has been taken.

The above apart, one another circumstance, which goes against the petitioner is that the petitioner suffered a decree in the suit filed by the 1 st respondent as plaintiff. A counter claim was filed by the defendants 1 to 4 alone and therefore, the petitioner cannot be aggrieved by the dismissal of the counter claim by the Civil Court, without any jurisdiction. It was open to the defendants 1 to 4 to have taken up the said contention/objection which they have not opted to. On the contrary, they have also joined hands with the petitioner in filing I.A.No.116 of 2012, where besides seeking to set aside the ex-parte decree, the counter claim was also sought to be restored to file. The said application in I.A.No.116 of 2012 was not pursued and it was dismissed for default on 23.01.2013. Therefore, I am unable to countenance the arguments of Mr.K.S.V.Prasad that the counter claim being in excess of the pecuniary jurisdiction of the City Civil Court, there was a clearly jurisdictional error rendering the decree invalid.

As rightly pointed out by Mr.K.S.V.Prasad, subsection (1) will not apply to the facts of the present case since it pertains to territorial jurisdiction. However, subsection

As already discussed in paragraph No.19, I am in entire agreement with the argument of Mr.K.S.V.Prasad, that the objection could not have been taken at the time of institution of the suit, since the suit was originally filed before the Original Side of this Court and written statements were also filed, when the suit was pending on the Original Side of this Court. However, once the petitioner was aware of the fact that the suit was transferred to the City Civil Court and according to the petitioner, the City Civil Court did not have the competence or jurisdiction to try the suit, at least then, the petitioner should have objected in terms of Section 21(2) of CPC at the “earliest possible opportunity” which was in the present case, when the petitioner joined hands with some of the other defendants, who had, in fact, even filed a counter claim and sought to set aside the ex-parte decree and also for restoration of the counter claim in I.A.No.116 of 2012. The said application was not even pursued by the petitioner and the other defendants and it was dismissed for default on 23.01.2013 and in such view of the matter, in my considered opinion, the petitioner has missed the “earliest possible opportunity” in the facts and circumstances of the present case.

This apart, there is yet another barrier that the petitioner will have to overcome, namely “prejudice” and “failure of justice”. These aspects have to be tested in the light of Section 11 of the Suits Valuation Act as well, since the objection now taken, that too, before the Executing Court for the first time, is pertaining to the pecuniary jurisdiction of the trial Court itself. It is in this regard that the judgment of the Four Judge Bench of https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) the Hon’ble Supreme Court in Kiran Singh’s case, referred herein supra, would come into play.

Despite noticing the fundamental and well-established principle that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings and the defect of jurisdiction, whether pecuniary or territorial or in respect of the subject matter of action, striking at the very authority of the Court, which cannot be cured even by consent of parties, the Hon’ble Supreme Court, after elaborate discussion of the interplay of Section 11 of the Suits Valuation Act, upheld the views of the Full Bench of the Madras High Court in Kelu Achan Vs. Cheriya Parvathi Nethiar, reported in AIR 1924 Mad 6 (Full Bench).

The argument that by reason of undervaluation, a right of appeal has been lost and prejudice has been caused was rejected as a misconception. The Hon’ble Supreme Court held that when a right of appeal has not been deprived of against the judgment, then they cannot contend that they have been prejudiced. The Hon’ble Supreme Court further held that decrees passed in cases of undervaluation as well as overvaluation are liable to be interfered with in an Appellate Court, if the Appellate Court finds that prejudice has been caused. The Hon’ble Supreme Court further held that the prejudice envisaged in Section 11 of the Suits Valuation Act must be something other than the https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) appeal being heard in a different forum, which would not have been competent to hear it on a correct valuation of the suit, as ultimately determined.

Ultimately, the Hon’ble Supreme Court held that even if the parties are entitled to raise objection for the first time in the Appellate Court, with regard to pecuniary jurisdiction, even then the requirement as to prejudice has to be satisfied. No doubt, as rightly contended by Mr.K.S.V.Prasad, the latest decision of the Hon’ble Supreme Court in Sneh Lata Goel’s case was on Section 21(1) of CPC and not relating to pecuniary jurisdiction.

However, after referring to Kiran Singh’s case, in Sneh Lata Goel’s case, the Hon’ble Supreme Court held that where the defect in jurisdiction is of kind which falls within Section 21 of CPC or Section 11 of the Suits Valuation Act, 1887, then an objection to jurisdiction cannot be raised, except in the manner and subject to the conditions mentioned thereunder. The Hon’ble Supreme Court also interpreted Kiran Singh’s case and held that an objection to territorial jurisdiction and pecuniary jurisdiction is different from an objection to jurisdiction over the subject matter.

Relying on Hasham Abbas Sayyad Vs. Usman Abbas Sayyad, reported in (2007) 2 SCC 355 and Mantoo Sarkar Vs. Oriental Insurance Company Limited, reported in (2009) 2 SCC 244, the Hon’ble Supreme Court held that when the objection https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) raised in execution did not relate to the subject matter of the suit, then the objection cannot be set to travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit and falling back on the well settled legal principle that the Executing Court cannot go behind the decree and must execute the decree as it stands. The Hon’ble Supreme Court held that the objection to jurisdiction was not a nullity. However, on facts, as pointed out by Mr.K.S.V.Prasad, the objection in the said case was on the ground of territorial jurisdiction and not pecuniary jurisdiction. However, at the same time, it cannot be brushed aside that the Hon’ble Supreme Court has discussed the entire case law on the subject and applied the ratio that an objection with regard to jurisdiction regarding subject matter of the suit alone would render the judgment a nullity, whereas in cases falling under the category of objection to jurisdiction pertaining to territorial and pecuniary jurisdiction, it would not be a nullity.

The next contention that has been taken by Mr.K.S.V.Prasad is that there is no decree against the revision petitioner. He would take me through the decree passed by the Trial Court, where there is no mention about the petitioner, who was arrayed as the 8th defendant. Though the arguments of Mr.K.S.V.Prasad appears to be very attractive at first blush, on a careful reading of the decree, I find that even though there is no specific mention about the 8th defendant, having appeared or being set ex-parte, the decree has been passed against all the defendants. The decree in O.S.No.4980 of 2011 reads as follows: https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) “This suit coming along with counter claim on 24.08.2012 before me for final disposal in the presence of M/s.K.V.Sundararajan, M.A.Abdul Hasan Shathali, S.Ramesh & J.Balaji, Counsel for the plaintiff and the defendants 1, 4 and 7 and their counsel M/s.V.Baskaran and the defendants 2, 3, 5 and 6 having remained absent and no representation having been made and all the defendants set exparte, upon perusing the proof affidavit on plaintiff’s side and other material papers on record and having stood over for consideration till this day, this court doth order and decree as follows: 1.that the suit “A” and “B” schedule mentioned properties be and are hereby partitioned between the plaintiff and the defendants as per the agreement dated 11.03.2006 executed by the plaintiff and the defendants 1 to 4 and the modified agreement dated 11.11.2006 and that the defendants are directed to separate possession of the “A” and “B” schedule properties mentioned hereunder in favour of the plaintiff on payment of Rs.18,74,000/- (Rupees eighteen lakhs seventy four thousand only) as per the second agreement dated 11.11.2006; 2.that the defendants 1 to 4 be and are restrained by way of permanent injunction from in any way dealing with the “A” and “B” schedule properties such as sale, mortgage, transfer, settlement, gift, lease or alienating in any other manner and in any way interfering with the plaintiff’s peaceful possession of the “A” schedule property and a portion in “B” schedule property; 3.that the counter claim filed by the defendants 1 to 4 be and is dismissed.”

The above clearly indicates that the 8th defendant has also suffered a decree and in such circumstances, I see no merit in the argument of Mr.K.S.V.Prasad that the execution petition could not have been filed against the 8 th defendant, when there is no decree against him. Such an argument is clearly fallacious and wholly unsustainable. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

It is contended by Mr.K.S.V.Prasad, that the sisters have been left out and behind their back, the brothers alone have entered into partition deed and in such circumstances and the right of the sisters cannot be left in the lurch. Admittedly, the petitioner or the sisters did not pursue their remedy, despite filing an application to set aside the ex-parte decree and also seeking to restore the counter claim. The Executing Court cannot go behind the decree and it is entrusted only with the job of execution of the decree at the hands of the decree holder. In such circumstances, the Executing Court cannot be found fault with for the sisters not being allotted any share and that the partition was only amongst the brother, behind the back of the sisters.

In fact, yet another circumstance that would clearly go against the petitioner is that I.A.No.43 of 2014 was filed by the petitioner seeking to condone the delay under Section 5 of the Limitation Act, and I.A.No.44 of 2014 was filed by the petitioner, along with the other defendants to restore I.A.No.116 of 2012 to file. The said applications were enquired into and on contest, the applications came to be dismissed on 10.02.2015 and the said order have attained finality, with no appeal or revision being preferred by the petitioner or the other defendants as well. Therefore, even viewed from this angle, all doors are closed on the face of the petitioner and the other defendants and the 1 st respondent was certainly entitled to execute the decree in his favour. In such circumstances, I am unable to see any error committed by the Executing Court, warranting interference in revision. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

Now, coming to the other judgments that have been relied by the learned counsel on either side, the Hon’ble Supreme Court in Sharda Devi’s case, held that a Letters Patent is a charter under which the High Court is established and the powers given to the High Court under such Letters Patent are akin to the constitutional powers of a High Court. I have no quarrel with regard to the said proposition. However, for various discussion and reasons assigned as to why the grant of leave against some of the defendants did not require the High Court to have retained the suit on its file, I am unable to apply the ratio laid down in this case.

In Laliteshwar Singh’s case, the Calcutta High Court held that granting of leave is a judicial function and cannot be delegated as a ministerial or administrative function. The Calcutta High Court further held that in terms of Clause 12 of the Letters Patent, in certain suits, a leave of the Court has to be first obtained. However, I have already held that the leave that was obtained was only in respect of the defendants, which was in fact, wholly unnecessary, since admittedly all the properties were situate within the territorial limits of the jurisdiction of the High Court on its Original Side.

The Division Bench of this Court in Central Bank’s case, only held that a mortgage suit, which was filed on the Original Side of this Court, after obtaining the leave, cannot be transferred to the City Civil Court, which had no jurisdiction to try the https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) suit, even though the pecuniary jurisdiction of the City Civil Court was enhanced. The Division Bench was dealing with a suit for mortgage which was filed on the Original Side of this Court, contending that part of cause of action arose within the High Court’s territorial limits, even though the mortgaged properties were situate outside the territorial jurisdiction of the High Court. In is only in such circumstances that this Court held that such a suit cannot be transferred to the City Civil Court. This ratio will therefore not apply to the facts of the present case.

In M/s.Raj and Associate’s case, the Division Bench of the Delhi High Court held that when a counter claim is filed, then the suit and the counter claim have to be tried by the same Court, in order to give a quietus with respect to both the claims, which are admittedly related to each other, so as to finally bind the parties.

The Full Bench of the Kerala High Cour in A.Z.Mohammed Farooq’s case, held that subject matter of the suit would be the aggregate of the amounts claimed in the plaint and the written statement by way of counter claim.

The Delhi High Court in Cofex Exports Limited’s case, held that the counter claim should not exceed the pecuniary limits of the jurisdiction of the Court. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

This Court, in Indirani’s case, held that under Order XIV Rule 2 of CPC, the Court has to pronounce judgments on all issues and if the issue relates to jurisdiction of the Court, then such issue will have to be treated as a preliminary issue before the Court ventures to decide the case on merits.

In Minor R.Boopathy’s case, this Court held that whenever an issue of jurisdiction is raised, then the same will have to be decided at the threshold.

The Delhi High Court in Mahesh Gupta’s case, held that a Court which does not have the jurisdiction to try the matter, would have no jurisdiction to pass any order which affects the rights of the parties and any such order would be without jurisdiction and of no effect.

The Hon’ble Supreme Court, in Makhan Lal Bangal’s case, held that under Order XIV, framing of issues is very important, as the scope of the trial is determined by laying a path on which the trial shall proceed.

In Kesar Singh’s case, the Hon’ble Supreme Court held that when the objection goes to the root of jurisdiction, it can be raised even in execution proceedings. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

The Hon’ble Supreme Court, in Deva Sahayam’s case, following Kiran Singh’s case held that a decree by a Court having no jurisdiction is a nullity.

Mr.K.S.V.Prasad, learned counsel for the petitioner also relied on the order of the learned Single Judge in K.Jayalakshmi Rao’s case, even though the decision is against the revision petitioner. However, he would contend that the said decision cannot be treated as a binding precedent, as he would point out to the reference in the said order to the Full Bench decision of this Court in V.Ramamirtham’s case. Taking me through the said decision, the learned counsel for the petitioner would contend that the ratio laid down by the Full Bench was not in any manner connected to the issue answered by the learned Single Judge and therefore, the said decision, even though appears to be against the revision petitioner, the decision cannot have any binding effect.

Coming to the decisions that have been relied on by the K.V.Sundararajan, learned counsel for the 1st respondent, in Haryana Vidyut Prasaran Nigam Limited’s case, the Hon’ble Supreme Court held that judgment of the trial Court cannot be reopened and correctness thereof be questioned by the Executing Court.

In Dharshan Singh’s case, the Hon’ble Supreme Court again reiterated that the Executing Court cannot go behind the decree, except in cases where the decree is alleged to be void ab initio or one decree without jurisdiction. https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm )

In Bhawarlal Bhandari’s case, the Hon’ble Supreme Court held that an error of law or a wrong decision can be corrected only way of appeal proceedings and not by resorting to Section 47 of CPC before the Executing Court.

In Brakewell Automotive’s case, the Hon’ble Supreme Court held that the Executing Court can neither travel behind the decree, nor sit in appeal over the same or pass any order, jeopardising the rights of the parties. It further held that an erroneous decree cannot be equated with a decree which is a nullity, which alone would render the decree inexecutable.

I have already discussed elaborately as to how the decree, at best, can be an erroneous decree. It is certainly not a decree which is passed without jurisdiction for it to be termed as a nullity. In such circumstances, applying the ratio laid down in all the above cases, I do not find any error committed by the Executing Court. Further, the petitioner or for that matter even the other defendants having missed the bus in not taking their objection with regard to pecuniary jurisdiction at the earliest instance, at least, when the application was filed in I.A.No.116 of 2012 for setting aside the ex-parte decree and for restoration of the counter claim. It was not open to them to thereafter raise the very same issue, that too, before the Executing Court. As held by the Hon’ble https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/08/2026 08:33:18 pm ) Supreme Court, such objections cannot be entertained at the stage of execution, that too, under Section 47 of CPC.

In fact, as early as in Kiran Singh’s case, which has been subsequently followed by the Courts up to the recent decision in Sneh Lata Goel’s case as well, it has been held that an objection even relating to pecuniary jurisdiction is not an objection to jurisdiction over the subject matter and therefore any such objection regarding defect of jurisdiction falling within Section 21 of CPC, has to be necessarily raised only in the manner and subject to conditions mentioned in Section 21 of CPC and not otherwise. Therefore, I am unable to countenance the arguments of Mr.K.S.V.Prasad that the objections go to the root of the matter, touching the jurisdiction of the subject matter in dispute, persuading me to hold that the decree is a nullity in the eye of law. For all the above reasons, there is no merit in the revision.

In fine, the Civil Revision Petition is dismissed. There shall be no order as to costs. Connected Civil Miscellaneous Petition is closed.