(1.) The appellants are plaintiffs whose plaint was returned on 5 May 1939 for presentation to the proper Court on the ground that the Subordinate Judge of Saran in whose Court the suit had been instituted had no territorial jurisdiction to entertain it. The correctness of that order is the only point for consideration in the appeal. The facts leading up to the suit are that the plaintiffs along with the pro forma defendants are residents in the district of Saran carrying on cloth business in the town of Chapra and that they had transactions with the defendants first party who reside and ordinarily do business in Bombay. The plaintiffs and the defendants first party executed in 1935 a simple mortgage bond hypothecating some immovable properties in the district of Saran for the payment of debts due from them to the defendants first party. Thereafter the defendants first party brought a mortgage suit on the original side of the High Court at Bombay, obtained a preliminary decree ex parte and through their attorneys sent to the plaintiffs a notice which the latter received on 15 March 1939 intimating that the High Court at Bombay would be moved on 21 March 1939 for certain reliefs in the matter of sale of the mortgaged properties.
(2.) The plaintiffs filed the present suit on 17 March 1939. The prayer is for a declaration that the decree obtained at Bombay is illegal, fraudulent and a nullity and is liable to be set aside and for an order to set aside the decree. There was also a prayer for interim injunction, but that has been disallowed by the Court below and is not pressed for in this appeal. It is contended that the Bombay High Court had no territorial jurisdiction and therefore the decree obtained there is a nullity. The contention was based on the fact that the present plaintiffs, defendants of the mortgage suit, did not reside in Bombay, nor according to them did the cause of action wholly or in part arise in Bombay. The suit being on a mortgage should, it is said! have been instituted in the Court having territorial jurisdiction in the place where the mortgaged property is situated.
(3.) These matters are not sufficient to give a cause of action for a suit instituted in Chapra unless some event taking place within that district is a part of the cause of action. As for the question whether the Bombay High Court had territorial jurisdiction, that is not a matter which pan be canvassed here except in a suit which the Court has jurisdiction to entertain. Therefore the point for decision here is not whether the Bombay High Court had territorial jurisdiction over the previous suit, but whether the plaintiffs have set up a cause of action entitling them to sue in Chapra; and it is argued that they have such a cause of action arising out of two matters, first, that as stated in para. 5 of their plaint the plaintiffs received a notice on 15 March 1939 from the attorneys of the first party defendants; secondly, that the decree was obtained by fraudulent suppression of summons and this must be considered to be done in Chapra because the summons if it had been duly served ought to have been served in Chapra.