1. The present application raises a pure question of law and it seems to me that the question must be answered in favour of the petitioner. The plaintiff instituted a suit upon two mortgages and obtained a preliminary decree and thereafter a final decree. In execution of the decrees the mortgaged properties are sought to be put to sale and a reference is proceeding before the Registrar. The judgment-debtor contends that the decrees are nullities inasmuch as a portion of the mortgaged properties comprised in each of the mortgages is outside the original jurisdiction of this Court and inasmuch as leave under Clause 12, Letters Patent, to institute the suit in this Court has not been obtained. On this ground execution is resisted. It is admitted by learned Counsel for the opposite parties that some of the properties comprised in each of the mortgages are outside jurisdiction and that leave under Clause 12 had not been taken, but it is said that the decrees are nevertheless executable.
2. Two questions arise for consideration. Firstly, what is the value and effect of a decree passed in circumstances like these? And secondly, is the executing Court entitled to refuse to execute such a decree? Whatever may have been the view taken in certain earlier decisions it is now well established that this Court has no jurisdiction to entertain a suit for land where part of it is outside its original jurisdiction unless leave of the Court has been obtained previous to the institution of the Provas Chandra Sinha v. Ashutosh Mukherjee : AIR1930Cal258 and Sewdayal v. Official Trustee of Bengal : AIR1931Cal651 . It was argued on behalf of the opposite parties that the decrees may be without jurisdiction so far as they relate to the land outside the jurisdiction of this Court but that the Court had jurisdiction to pass a decree with respect to the land within jurisdiction and that, therefore, the decrees so far as they relate to such land are perfectly valid. In support of this view, my attention was drawn to the decision of Trevelyan J. in Punchanun Mullick v. Srish Chandra Mullick ('87) 14 Cal. 835 where he held in a suit for the partition of properties partly within and partly outside the jurisdiction of this Court that although leave under Clause 12 had not been taken the Court could entertain the suit so far as it related to the properties within jurisdiction and partition them if the plaintiff submits to this course. In this view he passed a decree for partition. I was also referred to the case in Manindra Chandra v. Lal Mohun : AIR1929Cal358 . This suit related to land in the moffussil and also to some land within the original jurisdiction of this Court. Leave under Clause 12, Letters Patent, had not been taken. The matter was not noticed in the Court of first instance. On appeal the question of jurisdiction was raised. Rankin C.J. held that so far as the mofiussil properties were concerned the Court had no jurisdiction to entertain the suit and that objection could be taken for the first time in appeal. As regards the Calcutta properties he expressed no opinion on the question of jurisdiction, but refused to give the declaration prayed for in respect thereto on the ground that it would be idle to do so having regard to the particular circumstances of the case. He did not decide that the Court would have jurisdiction to entertain the suit with respect to the Calcutta property. This case, therefore, is really not of assistance to the opposite parties.
3. The decision of Trevelyan J. in Punchanun Mullick v. Srish Chandra Mullick ('87) 14 Cal. 835 is certainly authority for the proposition that in a partition suit where part of the property is outside jurisdiction and part within, the Court may in certain circumstances proceed to partition the property within jurisdiction when the plaintiff submits to such a course. The position here is quite different. The Court has disposed of the whole suit. The plaintiff did not give up his claim so far as the property outside jurisdiction is concerned. He cannot now say that a new decree should be fashioned out of the old one by the executing Court. The decree which is sought to be executed is the decree passed in the suit and the executing Court has merely to execute or refuse to execute that decree. It is not to pass a new decree for the purposes of execution. The decree makes all the properties liable for the payment of the mortgage dues. The executing Court cannot vary it and make only a portion of the properties so liable. Even in the suit the plaintiff could not have asked for a decree regarding part only of the mortgaged property. The entire property both outside and within jurisdiction was burdened with the mortgage debts. The Court could not have imposed the entire burden on only part of the property. I know of no procedure which would permit the Court to increase the burden on a portion of the property in this way. If this were done it would disturb the rights of third parties who may have purohased the equity of redemption or taken a mortgage on some portion of the property already mortgaged. It would disturb the course of marshalling and contribution laid down in Section 81, T.P. Act. I hold, therefore, that the decree cannot be split up and that the entire decree passed is without jurisdiction. The decree is therefore a nullity. This answers the first question.
4. The next question is whether the executing Court can refuse to execute such a decree. That question has been answered by the Full Bench in Gorachand Haldar v. Prafulla Kumar : AIR1925Cal907 . The decree has been passed by a Court with-out territorial jurisdiction and the executing Court must refuse to execute it as it is a nullity. It was argued that there is nothing on the face of the decree itself to show that it was passed without jurisdiction and that therefore this case did not fall within the rule laid down in Haldar v. Prafulla Kumar : AIR1925Cal907 which stipulates that it must be apparent from the decree that the Court had no jurisdiction. A decree, however, must be read together with the connected documents one of which is the plaint. This was laid down in Amala Bala Dassi v. Sarat Kumari Dassi : AIR1932Cal380 . If that is done then the want of jurisdiction is apparent on the face of the decree and the case falls within the operation of the rule laid down by the Full Bench. My attention was drawn to certain remarks by Costello J. in Kalicharan Singha v. Bibhuti Bhusan Singha : AIR1933Cal85 expressing dissent from the view taken by the Full Bench in Haldar v. Prafulla Kumar : AIR1925Cal907 . I do not feel called upon to say anything about the view taken by Costello J. inasmuch as I am bound to follow the law as laid down by the Full Bench. Lastly, it was argued that the petitioner by his conduct in participating in the reference and taking adjournments therein has waived his right to objec to the jurisdiction of the Court. This argument finds support in the judgment of Fletcher J. in King v. Secretary of State ('08) 35 Cal. 394 which was followed by Imam J. in Saraswati Dassi v. Biraj Mohini Dassi.('13) 17 C.W.N. 512. This view has not been adopted in the later decisions of this Court where it has been laid down that where there is no jurisdiction the .Court cannot be invested with jurisdiction either by waiver or by consent. In Provas Chandra Sinha v. Ashutosh Mukherjee : AIR1930Cal258 . noticed the decision of Fletcher J. and dissented from it. I respectfully agree with the view of Page J. which is based on the principle laid down by Lord Watson in Ledgard v. Bull ('87) 9 All. 191. The principle is this : When a Judge has no inherent jurisdiction over the subject-matter of a suit the parties cannot by their mutual consent convert it into a proper judicial process, but where a Judge is competent to try a cause and the parties join issue and go to trial on the merits, the defendant cannot subsequently dispute his jurisdiction upon grounds that there were irregularities in the initial procedure, which if objected to at the time would have led to the dismissal of the suit. Under Clause 12 of the charter as interpreted by all the High Courts, this Court has no jurisdiction to try a suit for land which is partly outside the Court's original jurisdiction unless leave has been previously obtained. The failure to obtain leave is not an irregularity. The absence of leave goes to the root of the Court's jurisdiction over the subject-matter of the suit. This view was taken by Panckridge J. in Sewdayal v. Official Trustee of Bengal : AIR1931Cal651 . He says:
It is elementary that if the Court has no jurisdiction having regard to the subject-matter of the suit and the failure of the plaintiff to obtain the necessary leave of the Court, no consent express or implied on the part of the defendants can cure the defect.
5. In these circumstances I am bound to hold, much against my sympathies, which are with the decree-holders, that the decrees are nullities, and thus incapable of execution. The execution proceedings are set aside. In the circumstances of this case the parties shall bear their own costs of this application.