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Jagernath Sahai and anr. Vs. Dip Rani Koer and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal871
AppellantJagernath Sahai and anr.
RespondentDip Rani Koer and ors.
Cases ReferredGopi Mohan Roy v. Doybaki Nundun Sen I.L.R.
Excerpt:
jurisdiction - bengal, n.-w.p. and assam civil courts' act (xii of 1887), section 13, clause (3)--civil procedure code (xiv of 1882), section 25--sale in execution of decree for sale. - .....judge had no jurisdiction, inasmuch as the properties which were brought to sale were within the local jurisdiction of the second subordinate judge. we may take it that the additional subordinate judge had no special local jurisdiction over the area within which these mortgaged properties were situated, although this is by no means clear. however, the judgment of the additional subordinate judge now before us in appeal proceeds on that ground. the objection was disallowed. there was another objection raised that the sale should be set aside by reason of an irregularity in the publication of the notification of sale, in consequence of which an inadequate price was realized on one of the mortgaged properties. both these points are taken before us in appeal.2. there is no question that.....
Judgment:

Prinsep and Ghose, JJ.

1. This appeal arises out of a suit on a mortgage bond in which a decree for sale was applied for under Section 88* of the Transfer of Property Act. The suit was instituted in the Second Court of the Subordinate Judge of Mozufferpore. Owing to pressure of work in that district, an Additional Subordinate Judge or a Third Subordinate Judge was appointed, and by an order passed under Section 25 of the Civil Procedure Code, the suit was transferred to that officer for trial. There is no question that the Additional Subordinate Judge had jurisdiction to try the suit. The order for sale being passed and the sale being held, an objection was raised at the last moment by the judgment-debtor (mortgagor) that the Additional Subordinate Judge had no jurisdiction, inasmuch as the properties which were brought to sale were within the local jurisdiction of the Second Subordinate Judge. We may take it that the Additional Subordinate Judge had no special local jurisdiction over the area within which these mortgaged properties were situated, although this is by no means clear. However, the judgment of the Additional Subordinate Judge now before us in appeal proceeds on that ground. The objection was disallowed. There was another objection raised that the sale should be set aside by reason of an irregularity in the publication of the notification of sale, in consequence of which an inadequate price was realized on one of the mortgaged properties. Both these points are taken before us in appeal.

2. There is no question that the Additional Subordinate Judge had complete jurisdiction to try the suit. The objection raised relates to his jurisdiction to effectuate the order passed by bringing the properties to sale within the forms of Section 88 of the Transfer of Property Act. Prima facie every Court, having jurisdiction to try a suit, has jurisdiction to execute its decree in that suit. It is contended on behalf of the appellant that the jurisdiction conferred on the Court of first instance in this case by the order of the District Judge under Section 25 of the Code of Civil Procedure transferring the suit for trial terminated as soon as he had passed an order absolute for sale, and that his jurisdiction in regard to execution of that order is limited by any order that may have been passed by the District Judge under Section 13 of the Civil Courts Act (XII of 1887). There are no cases expressly in support of this contention. The judgment of the Full Bench in the case of Prem Chand Dey v. Mokhoda Debi I.L.R. 17 Cal. 699 is not in point. In that case any jurisdiction, which the Court might have had, ceased by reason of an order of Government readjusting the local jurisdictions and transferring this particular local jurisdiction to another Court, and this transfer, we may observe on the report, took place before the institution of the suit. There are no doubt some cases which have been decided by this Court, in which it has been held that where a local jurisdiction has, by an order under the Civil Courts Act, been divided between two officers of co-ordinate jurisdiction, such as two Munsifs or two Subordinate Judges in the same district, the jurisdiction of one of these Courts in respect of execution is limited by the area assigned to him by such order. All those cases, however, were decided under the Bengal Civil Courts Act (VI of 1871). That law has now been repealed by Act XII of 1887, and in re-enacting Section 18 of the Act of 1871, the' Act of 1887 has added a Clause (3) which apparently is designed to deal with matters of this description. It declares that where civil business in any local area is assigned by the District Judge under Sub-section (2) to one of two or more Subordinate Judges, or to one of two or more Munsifs, a decree or order passed by the Subordinate Judge or Munsif shall not be invalid by reason only of the case in which it was made having arisen wholly or in part in a place beyond the local area of that place, or within the local limits fixed by the local Government under Sub-section (1). It cannot be disputed that under the orders of his appointment by the local Government this Subordinate Judge had jurisdiction over the entire district; if ho had no such jurisdiction he would not have been competent to try the suit.

3. We may also observe that in the case of Gopi Mohan Roy v. Doybaki Nunditn Sen I.L.R. 19 Cal. 13, and in the case of Tincouri Debia v. Shib Chunder Pal I.L.R. 21 Cal. 689 it was pointed out that in a suit to enforce a mortgage under the Transfer of Property Act it would be impossible to carry out the object of the Legislature if the Court which had jurisdiction to try the suit was not competent to carry out its order within the terms of that Act, and if it were necessary to transfer the decree or order which might bo passed making the sale absolute to the various Courts having local jurisdiction over the particular mortgaged properties in order that they might hold the sales. It seems to us that this course was not contemplated by the Legislature and would defeat the object of the Legislature to ensure sale to a mortgagee who might obtain an order under Section 88 of the Transfer of Property Act. We do not mean to be understood as holding that that Court is alone competent to hold the sale in execution of such an order, for in many cases it would no doubt be more convenient and proper that sales of various lots of the immoveable properties mortgaged should he held in the districts in which they are situate. But we think that the sales may also be held by the Court which passed the particular decree and order for sale. No doubt, as has been pointed out by Mr. Justice Ghose in the case of Gopi Mohan Roy v. Doybaki Nundun Sen I.L.R. 19 Cal. 13 that Section 223, Clause (c) of the Civil Procedure Code leaves it to the discretion of the Court to send the decree for execution to another Court having local jurisdiction, but that is a power which is discretionary and does not affect the jurisdiction of the Court which passed the original order. On these grounds also we think that this appeal must be dismissed.

4. As regards the second point it is objected that, inasmuch as two of the mortgaged properties are two separate putties comprising two separate estates on partition of the parent estate, and the two notifications of sale were published at the same place, those notifications were not affixed on the particular lands as required by law. The appellants' pleader, however, does not contend that neither of these notifications was properly made on one of the putties under order of sale. He merely argues on the fact that they were both made at the same place, from which he maintains that one of the notifications was not properly made. But he is unable to tell us to which particular putty or estate this objection would apply. Even if we conceded that this was sufficient ground for setting aside the sale, it would not justify an order setting aside the sales of both the putties, and as there is no evidence to show to which this objection would apply, it cannot be allowed. Moreover it would amount only to an irregularity, and unless it were found to which putty it related, it would be impossible to consider whatever evidence there might be in regard to any substantial injury caused thereby since the putties do not represent the same share of the parent estate, and therefore are of different values. It also appears that this objection was taken at a very late stage, and that when objection was taken to the proceeding in question the judgment-debtor did not urge that there was irregularity in the service of the sale proclamation, but referred to other irregularities. The appeal is therefore dismissed with costs.

* Decree for sale.

[Section 88: In a suit for sale, if the plaintiff succeeds, the Court shall pass a decree to the effect mentioned in the first and second paragraphs of section eighty-six, and also ordering that, in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale (after defraying thereout the expenses of the sale) be paid into Court and applied in payment of what is so found due to the plaintiff, and that the balance, if any, be paid to the defendant or other persons entitled to receive the same.

Power to decree sale in foreclosure suit.

In a suit for foreclosure, if the plaintiff succeeds and the mortgage is not a mortgage by conditional sale, the Court may, at the instance of the plaintiff, or of any person interested either in the mortgage money or in the right of redemption, if it thinks fit, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including, if it thinks fit, the deposit in Court of a reasonable sum, fixed by the Court, to meet the expenses of sale and to secure the performance of the terms.]


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