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Kissory Mohun Roy Vs. Kali Churn Ghose and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1897)ILR24Cal190
AppellantKissory Mohun Roy
RespondentKali Churn Ghose and ors.
Cases ReferredKellie v. Fraser I.L.R.
Excerpt:
execution of decree - mode of execution--mortgage--subsequent mortgagee--execution against properties outside the local jurisdiction of the high court--leave to sue--letters patent, high court, 1865, clause 12--application of restrictive words of that clause. - .....account in respect of each of the three mortgages, and failing redemption it was ordered that the properties comprised in the first and second mortgages should be sold, and the proceeds mar(sic)halled and applied so that the third mortgagee should have the full benefit of any surplus of the sale-proceeds of such of the properties comprised in his mortgage as were also comprised in the second mortgage, such properties being all in calcutta. [192] the registrar made his report. then after the time allowed for redemption, the properties comprised in the first and second mortgages were sold under a final order for sale and the proceeds applied as directed by the decree, with the result that the first and second mortgages were satisfied, and a substantial payment was made towards.....
Judgment:

Sale, J.

1. This suit was brought by the plaintiff on his mortgages, dated respectively the 19th of August 1888 and the 14th of December 1888. The properties, the subject of suit, are all in Calcutta within the local limits of the jurisdiction of this Court. Those comprised in the first mortgage were also comprised in the second mortgage with other properties. These other properties were subsequently mortgaged to the defendant Pran Gobindo Shaw with further properties out of Calcutta.

2. By the decree it was referred to the Registrar to take an account in respect of each of the three mortgages, and failing redemption it was ordered that the properties comprised in the first and second mortgages should be sold, and the proceeds mar(sic)halled and applied so that the third mortgagee should have the full benefit of any surplus of the sale-proceeds of such of the properties comprised in his mortgage as were also comprised in the second mortgage, such properties being all in Calcutta. [192] The Registrar made his report. Then after the time allowed for redemption, the properties comprised in the first and second mortgages were sold under a final order for sale and the proceeds applied as directed by the decree, with the result that the first and second mortgages were satisfied, and a substantial payment was made towards satisfaction of the third mortgage. For realization of the balance due to the third mortgagee he now applies for sale of the unsold properties comprised in his mortgage-being properties out of Calcutta. He claims the right to proceed against these properties in this suit under the liberty reserved by the decree as follows: 'And this Court doth hereby reserve the consideration of all further directions until the Registrar shall have made his report, and doth also reserve liberty to the defendant Pran Gobindo Shaw to proceed against the properties situated outside the town of Calcutta.'

3. It is on every account desirable that the third mortgagee should also obtain full relief in this suit. He was, under Section 85 of the Transfer of Property Act, made a defendant because some of the properties comprised in his mortgage were also comprised in a former mortgage in favour of the plaintiff. His mortgage was thus included in the subject of suit, and a decree was made in respect of all the mortgages. The Court therefore had, and has exercised, jurisdiction with respect to the third mortgage. The only question is whether it is restrained from dealing with the remaining properties comprised therein and which are situated outside the local limits of the jurisdiction of this Court, because prior leave to sue in respect thereof has not been obtained under clause 12 of the Letters Patent.

4. This clause vests the Court with jurisdiction to deal with suits for land where the land is situate either wholly or partly within and partly without the local limits of its Ordinary Original Civil Jurisdiction, but in the latter case the exercise of its jurisdiction is made dependent upon prior leave to sue having been obtained; see Kellie v. Fraser I.L.R. 2 Cal. 445. But words restrictive of the exercise by the Court of its jurisdiction must he construed strictly.

5. The restrictive words of the Charter apply to the case of a [193] plaintiff, but there is no similar restraining provision applicable to a case where the person seeking the exercise of the Court's jurisdiction is the defendant.

6. In the absence of any such restriction, I think I ought to make the order as prayed.

7. Attorneys for the second mortgagee: Messrs. N. N. Sen & Co.


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