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Prem Chand Dey Vs. Mokhoda Debi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal700
AppellantPrem Chand Dey
RespondentMokhoda Debi
Cases ReferredKamini Soondari Chowdhrani v. Kali Prosunno Ghose L.R.
Excerpt:
jurisdiction - sale in execution of a decree--property outside jurisdiction of court executing decree--code of civil procedure (act xiv of 1882, sections 16, 223 and 649. - .....in the nuddea court. on appeal the high court upheld the decision of the nuddea court, but decreed the appeal made from the court of the 24-pergunnahs, and, remanding the latter case, directed that court to determine certain questions relating to the village of alumpur, within the district of nuddea. against that decree there was an appeal to the privy council, and their lordships set aside the decree on the broad ground that the high court in its appellate capacity was not in a position to give jurisdiction to the court, of the 24-pergunnahs, so as to enable the latter court to deal with a case commenced and prosecuted in nuddea relating to lands in that district. it would seem, therefore, that the courts in this country have no power to determine any right or interest in.....
Judgment:

W. Comer Petheram, C.J., Prinsep, Pigot, and O'Kinealy, JJ.

1. This was a suit brought on a mortgage of 139 bighas of land forming part of mouzah Bouridanga Gopinathpur. It was brought in the Court of the Munsif of Biahenpur, and by consent it was decreed that the debtor should pay the mortgaged debt by the end of Choit 1293, and, in default, that the mortgaged property should be sold. Execution was taken out in 1887, and on the debtor paying Rs. 60 the execution proceedings were struck off. Execution was again sued out in 1888, when the property was sold and purchased on the 21st May by the decree-holder for Rs. 50. It has been found by both Courts that at the time the suit was brought, and when the order for sale was passed, the mortgaged property was wholly within the jurisdiction of the Munsif of Bankura,. and not within the territorial jurisdiction of the Munsif of Bishenpur, who executed the decree.

2. Both Courts have refused to confirm the sale; and the Division Bench of this Court, which heard the case in appeal, has asked our opinion on the following question, viz., whether a Court in execution of decree is competent to sell property, if, at the time the sale is held, the Court has no longer jurisdiction over the land which it is proposed to Bell.

3. We are of opinion that the Court has no such jurisdiction. By Section 16 of the Code of Civil Procedure, suits for the recovery of immoveable property, or for the determination of any other right or interest in immoveable property, must be instituted in the Court within the local limits of whose jurisdiction the property is situate. This shows that the object of the Code is to limit the territorial jurisdiction of the Courts in regard to the property that they are entitled to deal with. The case of Kamini Soondari Chowdhrani v. Kali Prosunno Ghose L.R. 12 I.A. 215 : I.L.R. 12 Cal. 225 strongly supports this opinion. In that litigation a suit for foreclosure relating to lands in the 24-Pergunnahs was dismissed in the 24-Pergunnahs Court, and an action upon a covenant in the mortgage deed relating to lands in Nuddea was also dismissed in the Nuddea Court. On appeal the High Court upheld the decision of the Nuddea Court, but decreed the appeal made from the Court of the 24-Pergunnahs, and, remanding the latter case, directed that Court to determine certain questions relating to the village of Alumpur, within the district of Nuddea. Against that decree there was an appeal to the Privy Council, and their Lordships set aside the decree on the broad ground that the High Court in its Appellate capacity was not in a position to give jurisdiction to the Court, of the 24-Pergunnahs, so as to enable the latter Court to deal with a case commenced and prosecuted in Nuddea relating to lands in that district. It would seem, therefore, that the Courts in this country have no power to determine any right or interest in immoveable property lying wholly outside their local jurisdiction. Nor does the argument in favour of the extended jurisdiction of the Courts in the mofussil based on Section 223 appear to us to be supported by that section. So far as the Procedure Code is concerned, execution of a decree is only a continuation of the suit, and there appears no legitimate reason why a Court in the later stage of a suit should have greater powers than it possessed at its institution. But however that may be, a comparison of Section 223 with the last paragraph of Section 649 seems to us to indicate that territorial jurisdiction is a condition precedent to a Court executing a decree.

4. We are, therefore, of opinion that the Court below not having, at the time it passed the order of sale, territorial jurisdiction over any portion of the property sold, and this being a suit between the decree-holder and the judgment-debtor, that the Judge was right in refusing to confirm the sale.

5. In the result the appeal will be dismissed with costs.

Ghose, J.

6. I agree in holding that the Munsif of Bishenpur had no jurisdiction to sell the property, and that therefore he was right (and so also was the Judge of the Appellate Court) in refusing to confirm the sale. And this, I should think, he was bound and competent to do when he found that he had no jurisdiction to hold the sale. I do not understand that the last portion of the judgment just delivered by the Chief Justice is intended to decide, or suggest, that if a third party, and not the decree-holder, were the purchaser, the Courts below would not be right in making the order they did, and it is therefore not necessary to discuss that matter in this case.


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