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Tincouri Debya Vs. Shib Chandra Pal Chowdhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1894)ILR21Cal639
AppellantTincouri Debya
RespondentShib Chandra Pal Chowdhury and ors.
Cases ReferredKishory Mohun Roy v. Mahomed Muzaffar Hossein I.L.R.
Excerpt:
execution of decree - property outside jurisdiction of court--jurisdiction--mortgage decree--attachment, absence of, on sale of mortgaged property--civil procedure code, 1882, sections 19, 223. - .....the appeal now before us is from an order of the subordinate judge refusing to set aside the sale held in execution of that decree.2. two points are raised in this appeal: first, that the subordinate judge had no jurisdiction to sell certain properties beyond his ordinary local jurisdiction, although they may form part of the decree properly delivered by him under which the sale has been held, inasmuch as such properties being situated in another district, the sale of these properties should have been held by the court having ordinary local jurisdiction, and the decree for such properties should have been transferred to such court for execution; secondly, that the sale held without an attachment previously made was bad.3. on the first point it is necessary only to refer to the.....
Judgment:

Prinsep, J.

1. The proceedings now before us relate to a sale held in execution of a decree passed by the Subordinate Judge of Nuddea. The suit was brought on a mortgage bond, by which certain properties which had been brought to sale were hypothecated, some of these properties being situated beyond the ordinary local jurisdiction of that Court. The Subordinate Judge had full jurisdiction to deal with such a case and to pass a decree in respect of such properties. The appeal now before us is from an order of the Subordinate Judge refusing to set aside the sale held in execution of that decree.

2. Two points are raised in this appeal: first, that the Subordinate Judge had no jurisdiction to sell certain properties beyond his ordinary local jurisdiction, although they may form part of the decree properly delivered by him under which the sale has been held, inasmuch as such properties being situated in another district, the sale of these properties should have been held by the Court having ordinary local jurisdiction, and the decree for such properties should have been transferred to such Court for execution; secondly, that the sale held without an attachment previously made was bad.

3. On the first point it is necessary only to refer to the judgments of this Court. In the case of Prem Chand Dey v. Mokhoda Debi I.L.R. 17 Cal. 699 it was held that, although a Court may have had jurisdiction to pass a decree directing the sale of properties covered by a mortgage, still, if the area within which such properties were situated had been transferred to another jurisdiction after decree, it was not competent for that Court to proceed to execute such decree. In that case, however, the Court had no jurisdiction at ail to execute the decree so as to sell any of the mortgaged properties, since they had all of them ceased to form part of the local jurisdiction of the Court after the decree had been made. The case of Gopi Mohan Roy v. Doybaki Nundun Sen I.L.R. 19 Cal. 13 is, however, directly in point. In that case, as in this, the decree related to properties within and without the ordinary local jurisdiction, and it was held that consequently that Court was competent to execute its decree to its fullest extent, even to the sale of properties outside its local jurisdiction. We concur in the view expressed by the learned Judges in that case. It seems to us, moreover, that it would be impossible to apply the provisions of the Transfer of Property Act relating to sales in accordance with the decree passed in a suit on a mortgage, if it were necessary to apply to different Courts to obtain realization of the mortgage debt by sale of the properties hypothecated. There is nothing, moreover, in the terms of the Code of Civil Procedure itself which would deprive the mortgagee of this very necessary power.

4. In regard to the second point, we have been referred to the case of Kishory Mohun Roy v. Mahomed Muzaffar Hossein I.L.R. 18 Cal. 188 in which the object of an attachment before decree, and the effect of an omission to cause such attachment to be made, are fully discussed. I was one of the Judges who decided that case. We see no reason to differ from the view therein expressed. We should not be inclined to hold that the omission to cause an attachment to be made in execution of a decree for the realization of a mortgage debt would affect the validity of a sale held in execution of such decree. For these reasons we are of opinion that this appeal should be dismissed with costs.


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