BEPIN BEHARY LAW Vs. MOHIT KUMAR PAL

JUDGEMENT

(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/s. Ashutosh Mukherjee and Sewdayal V/s. Official Trustee of Bengal . 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/s. 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/s. Lal Mohun . 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/s. 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.