1. The only question seriously argued is whether there was jurisdiction to try the suit, or in other words whether the matter to which the award relates was matter over which this Court had jurisdiction.
2. There is no doubt that the matter to which the award relates was the partition of property including immoveable property, part of which is outside the jurisdiction of this Court on its original side. Without leave first obtained a suit for the partition of such property could not have been entertained. And it is consequently contended that, there being no leave granted in the present case, there was no jurisdiction having regard to Sections 12 of the Letters Patent. A similar contention was raised and overruled in Kellie v. Fraser I.L.R. 2 Calc. 555 and we see no reason for not following that case.
3. It cannot be said that because the Court was not bound to grant leave it had no jurisdiction over the matter in respect of which it had liberty to grant leave.
4. In the case cited leave to sue would have been necessary if the suit had been an ordinary suit, because part of the cause of action admittedly did not arise within the jurisdiction. If it was right to hold in that case that leave was not necessary, it must be equally so in the present case where part of the land is not within the jurisdiction. Leave cannot be required on the ground that the property is in part outside the jurisdiction because this is plainly not a suit for land. Nor can leave be required on the ground that the cause of action has in part arisen out of the jurisdiction for that is not the case. The right to have the award filed is a right which originated within the jurisdiction.
5. It is objected that this view of the law may lead to great inconveniences and that applications may be made here which ought to be made in other Courts. In our opinion there is a wide distinction between an application to file an award which ex hypothesi decides the question in dispute between the parties, and an ordinary suit, and moreover under Section 20 of the Code of Civil Procedure it is always competent to the defendant to move for a stay of proceedings with a view to return of the plaint.
6. For these reasons we dismiss the appeal with costs.