1. This is an appeal by the plaintiff whose suit has been dismissed by the Court below. The suit was for a declaration that the decree passed in suit No. 374 of 1931, Gorakh Ram Sadho Ram v. (1) Murlidhar, (2) Rao Saheb Rang Nath Khem Raj and (3) Shri Niwas, passed by the High Court of Judicature at Bombay be declared ultra vires, without jurisdiction and illegal and it be further declared that the sale held in execution of the said decree on the original side of the Bombay High Court was invalid and no title in the property detailed at the foot of the plaint passed to defendant 1, Messrs. Gorakh Ram Sadho Ram. The history anterior to the present litigation might be given in a few words. It appears that the three abovenamed persons Murlidhar, Eang Nath Khem Raj and Shri Niwas had borrowed certain sums of money from Gorakh Ram Sadho Ram and had executed an equitable mortgage of certain properties situated in Wardha (Central Provinces) and Mirzapur (United Provinces), but none of the properties mortgaged were in Bombay. Suit No. 374 of 1931 was brought in the Bombay High Court on the basis of the mortgage and was decreed and it was held that a suit on a mortgage was not a suit for land and therefore the suit could be brought with the leave of the Court in the Bombay High Court in spite of the fact that no portion of the mortgaged property was situate within the limits of the Bombay Presidency. This decision was obtained in 1931 and a preliminary decree was passed on 3th July 1931. Presumably the Bombay Court followed the later Full Bench decision of that Court reported in Hatimbhai Hassanally v. Framroz Eduljee ('27) 14 A.I.R. 1927 Bom. 278, which overruled the earlier Full Bench decision of three Judges reported in India Spinning & Weaving Co. Ltd. v. Climax Industrial Syndicate ('26) 13 A.I.R. 1926 Bom. 1 The Madras, Calcutta and Rangoon High Courts have taken a view different from the view taken in Hatimbhai Hassanally v. Framroz Eduljee ('27) 14 A.I.R. 1927 Bom. 278 mentioned above.
2. The plaintiff Murlidhar brought the present suit in the Court of the Subordinate Judge, Mirzapur, and he thought that he might be able to induce the learned Judge of the Court below to hold that the view taken by the Bombay High Court was erroneous and the view taken by the other High Courts of Madras, Calcutta and Rangoon was the correct view. He, however, failed and the learned Judge of the Court below came to the conclusion that the Bombay High Court had jurisdiction to pass the decree which it did in suit No. 374 of 1931. Learned Counsel for the appellant frankly brought to our notice the provisions of the Decrees and Orders Validating Act (Imperial Act 5 of 1936) and under Section 2 of that Act no decree passed or order made by the High Court of Judicature at Fort William In Bengal, the High Court of Judicature at Madras or the High Court of Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction under Clause 12 of its Letters Patent, or by the High Court of Judicature at Rangoon, in the exercise of its original civil jurisdiction under Clause 10 of its Letters Patent, shall be called in question in any proceedings before any other Court on the ground that the High Court passing the decree or making the order had no jurisdiction to pass or make the decree or order. This legislation has obviated the necessity of our deciding the vexed question of law that arises in this case and we are not called upon to say as to which of the two contending views is correct. We are debarred from adjudicating on the validity of the decree passed by the Bombay High Court. It is not possible, therefore, for us to give a declaration to the plaintiff that the decree passed by the Bombay High Court was without jurisdiction.
3. As has been already mentioned, the plaintiff sought a further declaration that the Bombay High Court had no jurisdiction to sell the property at Mirzapur and that the execution proceedings taken in the Bombay High Court were without jurisdiction. Section 2, Decrees and Orders Validating Act, makes provision not only for the sanctity of the decree passed by the Presidency High Courts but has declared that orders passed by those Courts will also be sacrosanct. We think that that provision of law stands in the way of our giving the second declaration prayed for by the plaintiff. Moreover, Section 38, Civil P.C. provides that a decree may be executed either by the Court which passed it or by the Court to which it is sent for execution. The Bombay High Court has thought it fit to execute the decree which it passed itself and in order to preserve comity amongst various High Courts we would not be justified in holding that the Bombay High Court had no jurisdiction to execute the decree which it had passed. There is no force in this appeal and we accordingly dismiss it with costs.