Norman Macleod, Kt., C.J.
1. This was a suit originally instituted in the Bulsar Court by the plaintiffs who are the heirs of one Husainbhai Abderehman, deceased, for an account of the management which his co-sharer and trustee deceased Sulemanji and his successors the defendants, or any of them might have made of the share of the said Husainbhai in the plaint house, and of the amount which the deceased Sulemanji or the defendants or any of them might have received by mortgaging and selling that share, and for recovering the amount that might be found due with Costs. The Bulsar Court decided that it had no jurisdiction, and accordingly the plaint was presented thereafter in the Court of the First Class Subordinate Judge at Surat.
2. The facts are that Husainbhai and Sulemanji were paternal cousins, originally residents of Bulsar, who traded in partnership in Delagoa Bay in Portuguese South Africa; that from that partnership money they purchased a house called 'a new house. Husainbhai withdrew from the partnership in or about 1890 and came back to Bulsar. As the original sale-deed of the house was in Husainbhai's name he, before returning to India, executed a deed of transfer in favour of Sulemanji, but by the mistake of the writer the whole house instead of half only was mentioned in the deed. Sulemanji, however, admitted Husainbhai's right to half the share and there was thus a resulting trust in his favour. Sulemanji realized the rent of the house and sent some amount to Husainbhai till his death in 1897 and then to plaintiff No. 1. Sulemanji. died in July 1902 after making a will. One Ismail Haji Halimbhai was appointed executor by that will, and in that capacity he took charge of the 'new house' along with the other property of Sulemanji and continued to manage it until January or February 1903. Then Mahomed Sulemanji, Abderehman Sulemanji and Bai Hava, widow of Sulemanji, got the will of Suleiuanji eet aside by the Court of Delagoa Bay and obtained possession of the property of Sulemanji including the 'new house'. Mahomed Sulemanji thenceforward realized the rent, but did not give anything to the plaintiffs, nor did he render any account of their share. The plaintiffs alleged that they did not know that Sulemanji's will had been set aside and that possession of his property had been given to Mahomed Sulemanji. Suit No. 385 of 1907 was brought in the Bulsar Court against Ismail Haji Halimbhai for account, and having then been informed that the will had been set aside, they made Sulemanji's heirs parties to the suit and. a decree for account of the property up to the death of Sulemanji was eventually passed in their favour on the 23rd July 1912.
3. They alleged in their plaint in this suit that during the pendency of that suit they come to know that Sulemanji had mortgaged the house to a Bank, that under the terms of the deed the Bank had taken possession of it in 1906 and had got it sold for its debt in 1907 or 1908. They claim, therefore, that the defendants are liable to account to the plaintiffs as trustees.
4. Defendants Nos, 2, 3 and 5 were residing at Delagoa Bay, and it appears that, under n. 20 of the Civil Procedure Code, the Court was asked to grant leave to sue them &b; defendants. That leave was refused, and there is nothing in the case to show that these defendants acquiesced in the institution of the suit. They never entered an appearance. Now the plaintiffs' claim falls under two heads, first, an account of the management of the house until it had got into the possession of the mortgagees; and, secondly, an account of the sale proceeds after the mortgage property was sold by the mortgagee On the first question the issue framed was, whether the Court had jurisdiction to entertain and try the suit. Under Section 20, Civil Procedure Code, the Surat Court had jurisdiction to try the suit and could have continued with the hearing if all the defendants resided within the local limits of the jurisdiction, or in case if any of the defendants did not so reside, either when the Court had given leave, or in the alternative if no leave was granted, if those defendants residing outside the local limits had acquiesced in the institution. But the Court having refused to grant leave as against the defendants outside the local limits, unless the plaintiffs could get those defendants to acquiesce in the institution of the suit at Surat, clearly the suit could not go on. The suit was against all the defendants for an account, and if the plaintiffs had struck out the defendants who were residing outside the jurisdiction, possibly they would have got a decree in the Surat Court against those defendants who resided in the local limits. But that is not what they have attempted to do. They have continued fighting a suit which in its inception was bad.
5. With regard to the first' head as to the account of the management of the house, clearly they could not get an account of the rents from parties who never had been in Delagoa Bay, and further as their suit for an account of the rents had been filed in 1907, after the house had got into the possession of the Bank, they should have sued in that suit for an account of the rents which had been received up to the date of the suit. They have failed to do that, and so under Order 11, Rull 2, they are barred' from suing for an account of those rents in another suit.
6. Then as regards the account of the sale proceeds, they never alleged facts on which the cause of action could be founded. What happened when the property came into the hands of the mortgagees is Wrapt in obscurity. Ordinarily a mortgagor or those responsible for the mortgagor's estate will not be liable to account to the beneficiaries unless it can be shown that the sale had realized sufficient to pay off the mortgage, and loft a surplus, an that the surplus was in the hands of the person from whom an account was claimed. But the plaintiff is not in a position to allege anything of the sort. Therefore, they have not alleged anything which would have to be proved before the Court could pass a decree. Therefore, the plaint might well have been rejected as not disclosing a cause of action.
7. Apart from that, clearly the Court was right in deciding that the provisions of Section 20, Civil Procedure Code, had not been complied with, and the 9uit could not go on with the defendants Nos. 2. 3 and 5 still on the record. The proper course really then for the Court to have followed was to reject the plaint. But it is suggested that the Court was wrong in dismissing the suit when it ought to have returned the plaint oh the ground that it had no jurisdiction to try the suit. But I think there is some confusion in this argument. Under Order VII, Rull 10, it is no doubt obligatory that the plaint, if instituted in the wrong Court, shall at any stage of the suit be returned to be presented to a Court in which the suit should have been instituted. But it is only in a case where the suit is instituted in a wrong Court that the plaint must be returned. There was nothing to prevent the suit being instituted in the Surat Court, if the proper procedure had been followed. If leave had been obtained, or if these Delagoa Bay defendants had entered un appearance, then the suit would have proceeded and it would have been heard on its merits. This was not a case in which the Court ought to have returned the plaint because it ought to have been instituted in another Court, Therefore the only course for the Court was to dismiss the suit. If from the allegations in the plaint it appeared that there was no cause of action then the proper course to adopt was to reject the plaint. But the plaintiffs did claim an account of the rents of the house, and that, as I have shown, is barred under Order II, Rule 2, so that part of the plaint could not have been rejected as not disclosing any cause of action. The only course now, I think, is to dismiss the appeal with costs. Costs to be taxed taking the appeal as from a decree, not from an order.
8. I agree. The only question on this appeal is whether the lower Court had jurisdiction to deal with the suit in the absence of certain defendants who did not reside in the jurisdiction of the Court, but resided in Delagoa Bay in Portuguese territory. The cause of action is not stated in the plaint clearly. It is clear, however, that, so far as the principal cause of action is concerned, namely, the receipt of the sale prooeeds of the house in Delagoa Bay sold in satisfaction of a mortgage on that house, and the liability of the defendants to account for the same, it arose outside the jurisdiction of the Court; and it is not suggested before us that the case falls under Clause (c) of Section 20 of the Code of Civil Procedure. The only ground upon which the jurisdiction is claimed is that some of the defendants resided within the jurisdiction of the Court. It is true that some of the defendants did reside within the jurisdiction of the Court; but it is also clear that some did not reside within the jurisdiction of the Court; and though au attempt has been made during the course of the argument to show that they must be taken to be residing for the purposes of the suit at Bulsar within the jurisdiction of the Court, in spite of the fact that they lived in Delagoa Bay for the purposes of their business, it is clear that the case must be decided on the footing that those defendants really resided outside the jurisdiction of the Court. The argument that they resided at the time of the suit at Bulsar cannot be accepted. That being so, it is clear that as the leave to allow the suit to proceed against those defendants was refused under Clause (h) of Section 20 of the Code, the Court had no jurisdiction to proceed with the suit at least as regards those defendants.
9. It is contended, however, on behalf of the plaintiffs here, that the suit should have been proceeded with as regards the other defendants who resided is fact at the date of the suit in the jurisdiction of the Court. It is clear from the nature of the cause of action as stated in the plaint that the suit could proceed, if at all, against all the defendants as there is no allegation against a particular defendant residing within the jurisdiction of the Court that ho received any amount of the sale proceeds in respect of which the suit is brought. That being so, the suit could be proceeded with only if all the defendants in the present action are properly before the Court. As some of the defendants who resided outside the jurisdiction of the Court were not before the Court, it follows that the whole suit must be dismissed for want of jurisdiction.
10. As regards the form of the order, I entirely agree that under the circumstances the only proper order that could be made is to dismiss the suit. The first order that was made by the Bulsar Court returning the plaint to be presented to the proper Court, that is to the Court of the First Class Subordinate Judge at Surat was a proper order. The suggestion that a similar order should be made in the suit a second time seems to me to be outside the spirit and the letter of the rule on which the plaintiffs have relied.