1. This is an appeal against the order of Mr. Justice Shephard, deciding against the defendant the preliminary issue, 'Whether this Court has jurisdiction in the case, the mortgage property being alleged to be situated beyond the court's local jurisdiction.'
2. The learned Judge says, 'In the face of the leave which stands uncancelled, I must decide tor plaintiff'.
3. The cases cited before the learned judge appear to be D'Souza v. Coles (1867) 3 M.H.C.R. 384 and M. Vythilinga Mudaly v. M. Cundasamy Mudaly (1875) 8 M.H.C.R. 21.
4. In the former, it was held that an appeal lies from the decision of a Judge refusing an application made under Clause 12 of the Letters Patent, for leave to institute in this Court a suit on a cause of action which arose in part only, within the local limits of this court's jurisdiction. In M. Vythilinga Mudaly v. M. Cundasamy Mudaly (1875) 8 M.H.C.R. 21 it was held that where such an application was refused by one judge, it was not proper for another judge in Chambers to grant the application when renewed on precisely the same grounds.
5. The above two decisions are authority for the propositions (1) that an order of a judge refusing an application under Clause 12 of the Letters Patent, is appealable and (2) that such order of refusal by one judge cannot be superseded by another judge in Chambers. But neither of them is in point when the question is whether an order granting permission to institute a suit under Clause 12, may form the subject of an issue for trial in the suit so instituted. In the present case, the leave to sue was granted by the Registrar in exercise of the powers conferred on him under Sections 637 and 652 of the Code of Civil Procedure 'and all other powers thereunto enabling.' See Appendix 1 of the rules published in the Fort Saint George Gazette supplement, dated 16th June 1891.
6. The order was passed exparte without even issue of notice to the defendant.
7. Under the circumstances it seems to me that defendant was entitled to take the objection in his answer to the plaint, and that the question is one that should be decided as an issue in the suit.
8. I would, therefore, allow this appeal and setting aside the order of the learned judge, remand the issue for disposal on the merits.
9. The costs of this appeal will abide and follow the result.
Mutliusamy Aiyar J.
10. I concur.