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K. Venkatrao Sethupathy Vs. Khimji Assur Virji - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 27 of 1916
Judge
Reported in(1924)26BOMLR535
AppellantK. Venkatrao Sethupathy
RespondentKhimji Assur Virji
Excerpt:
.....patent.;the high court has accordingly jurisdiction to entertain such a suit even though the land mortgaged be outside the local limits of its ordinary jurisdiction.;holkar v. dadabhai cursetji ashburner (1890) i.l.r. 14 bom. 353 and sorabji v. rattonji (1898) i.l.r. 22 bom. 701, followed.;the personal jurisdiction of the high court is exercised under clause 12 of the letters patent not only in cases where the defendants or some of them reside permanently within the jurisdiction but in cases where, according to the provisions of the letters patent, they have been lawfully caused to appear upon summons where the cause of action or part of it has arisen in bombay. - - 353. that in 1890 this court had for eighteen years exercised jurisdiction over cases like the present and since..........cal. 891. where the plaintiff' sought to set aside leases granted by the defendant-executors for land outside the jurisdiction for holding it a suit in which the court had no jurisdiction. mr. justice stanley observed that the court assumes jurisdiction in regard to immoveable properties situate outside the jurisdiction in cases where it can act in -personam either to compel the owner to give effect to legal obligations into which he has entered or to a trust reposed in him. the judicial committee in appeal expressly upheld this ruling of the calcutta high court in reference to jurisdiction: benode behary bose v. nistarini dassi. i.l.r. (1905) cal. 180, p.c.4. it has been suggested for the defendants, however, that the court here cannot act in personam, inasmuch as, although the cause.....
Judgment:

Basil Scott, Kt., C.J.

1. The plaintiffs who are mortgagees of the land, building and machinery of a Mill situate at Bellary under a mortgage of December 18, 1912, in the English form, have obtained the usual mortgage decree against the mortgagors, providing that on the defendants or any of them paying into Court on behalf of the plaintiff the sum of Rs. 1,11,302-12-6 for debt and interest thereon at the rate of six per cent, from January 1, 1916, with six monthly rests until payment and the costs of this suit when taxed and noted in the margin together with interest on such costs at six per cent, per annum from the date thereof till payment, the plaintiff do reconvey to the defendants the property in the mortgage comprised free and clear of and from all incumbrances done by the plaintiff or any person or persons claiming by, from or under him, and if default shall be made by the defendants in paying into Court such principal, interest and costs by the time named, then the plaintiff will be entitled to apply for a decree absolute for sale.

2. It may be inferred from the mortgagees' power of sale under the mortgage which is confined to the mill machinery treated as removeable plant that the plant was the valuable part of the security granted and assigned.

3. The first respondent, however, appeals against the decree on the ground that the suit is a suit for land at Bellary and therefore not within the jurisdiction of the High Court under Clause 12 of the Letters Patent and he challenges the correctness of the decision of this Court in Holkar v. Dadabhai Cursetji Ashburner I.L.R. (1890) Bom. 353. and the later case of Sorabji v. Rattonji I.L.R. (1898) Bom. 701. The decision in Holkar v. Ashburner has for many years been followed in this Court as establishing that suits by mortgagees to enforce their rights under their mortgages are not suits for land within the meaning of Clause 12 of the Letters Patent. We are bound by that decision. Speaking for myself, it appeal's to me difficult to understand how a suit in which the mortgagee seeks to have the land vested in him under his mortgage sold to somebody else by the agency of the Court is a suit for land. It is a suit to realise and dispose of his and his debtors' interests in the land. The object of the suit is not to obtain land or to obtain a declaration of title to land or to obtain damages for interference with land, but to obtain repayment of debt owing to the plaintiff and for that purpose to realise the security which has been vested in him. I can see no more reason for treating such a suit as a suit for land than there was in Nistarini .Dassi v. Nundo Lall Bose I.L.R. (1899) Cal. 891. where the plaintiff' sought to set aside leases granted by the defendant-executors for land outside the jurisdiction for holding it a suit in which the Court had no jurisdiction. Mr. Justice Stanley observed that the Court assumes jurisdiction in regard to immoveable properties situate outside the jurisdiction in cases where it can act in -personam either to compel the owner to give effect to legal obligations into which he has entered or to a trust reposed in him. The Judicial Committee in appeal expressly upheld this ruling of the Calcutta High Court in reference to jurisdiction: Benode Behary Bose v. Nistarini Dassi. I.L.R. (1905) Cal. 180, p.c.

4. It has been suggested for the defendants, however, that the Court here cannot act in personam, inasmuch as, although the cause of action arose wholly or in part within the jurisdiction and leave has been obtained to sue, he and the other defendants reside not in Bombay but in Bellary.

5. But the personal jurisdiction of the Court is exercised under Clause 12 of the Letters Patent not only in cases where the defendants or some of them reside permanently within the jurisdiction but in cases where, according to the provisions of the Letters Patent, they have been lawfully caused to appear upon summons where the cause of action or part of it has arisen in Bombay.

6. The observations of Sir Charles Sargent in Girdhar Damodar v. Kassigar Hiragar I.L.R. (1893) Bom. 662. are instructive upon this point and it is to be observed that his judgment is referred to with approval by Lord Lindley in delivering the judgment of the Judicial Committee in Annamalai Chetty v. Murugasa Chetty. I.L.R. (1903) Mad. 544, p.c. The Appellate Court in Madras in Srinivasa Moorthy v. Venkata Varada Ayyangar I.L.R. (1906) Mad. 239. have also held that jurisdiction was rightly exercised by the Madras High Court in an administration suit inter alia, in respect of land situate outside the Madras Presidency (see the judgment of Subramania Ayyar J. at p. 280), not only on the ground that the defendant had temporary residence within the jurisdiction but also because he was sued upon a cause of action, part of which had arisen within the jurisdiction. The decision was affirmed by the Judicial Committee in Srinivasa Moorthy v. Venkata Varada Aiyangar. I.L.R. (1911) Mad. 257, p.c.

7. Lastly, I may refer to the judgment of Byrne J. in Duder v. Amsterdamsch Trustees Kantoor [1902] 2 Ch. 132. as showing that where a defendant is lawfully brought before the Court, the Court would not be deterred from making an order in personam with respect to land situate outside the jurisdiction merely by the fact that the person so brought before it has his residence in another country.

8. The appeal must be dismissed with costs.

9. The first defendant applied for leave to appeal to His Majesty in Council.

10. On February 12, 1917, the High Court (Scott C.J. and Heaton J.) granted the leave, observing as follows:--

Basil Scott, C.J. The second rule arises out of Suit No. 692 of 1915 and Appeal No. 27 of 1916. In that case the question argued before this Court in the appeal was as to the jurisdiction of the Court to pass a decree for sale in a mortgage suit filed in Bombay relating to property in another Presidency. It appears from the argument of the Advocate General in His Highness Shrimant Maharaj Yashvantrav Holkar v. Dadabhai Cursetji Ashburner (1890) 14 Bom. 353. that in 1890 this Court had for eighteen years exercised jurisdiction over cases like the present and since Holkar's case this Court has exercised jurisdiction in similar cases for a further period of twenty-seven years. That makes a consecutive period of forty-five years, during which the practice, has been uniform to entertain mortgage suits in this Court relating to land outside the Presidency, and many titles have been founded upon decrees in such suits. At the same time it cannot be disputed that, as an original question free from previous decisions, the question of the jurisdiction of the Court over the land outside the Presidency is a substantial question of law. We have not been referred to any case in which the Privy Council has expressly dealt with it, and therefore, we think-that rule might be made absolute on the ground that the appeal involves a substantial question of law. The costs will be costs in the appeal.

11. [A certificate was issued in due course; but the appeal to the Privy Council was not prosecuted.]


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