JASRAJ FOOAJI Vs. AKUBAI

JUDGEMENT

(1.) In this suit a preliminary question as to jurisdiction has been raised on behalf of defendants Nos. 2 and 3 who have filed their written statements, though the point is not raised in their written statements.

(2.) It is urged that as the property mortgaged is situated outside the limits of the original jurisdiction of the High Court this Court has no jurisdiction to entertain the suit on a mortgage bond relating to such property. In the present case the property is situated at Karachi and the defendants live at Poona. The debt is payable at Bombay or Poona or Karachi at the choice of the mortgagee under the bond and for the purpose of the present point it must be assumed that the debt is payable in Bombay and that apart from the mortgage the suit to recover the debt would be within the jurisdiction of this Court. It is conceded that the contention that this Court has no jurisdiction to entertain this suit to enforce the mortgage in question is opposed to the ruling in Holkar V/s. Dadabhai Cursetji Ashburner (1890) I.L.R. 14 Bom. 353. Since that decision the practice of this Court has been to entertain such suits. But the learned counsel for defendants Nos 2 and 3 relies upon Harendra Lal Roy Chowdhuri V/s. Hari Dassi Debi (1914) L.R. 41 I, A, 110 : S.C. 16 Bom. L.R. 400 and contends that the view taken in Holkar V/s. Dadabhai must be taken to have been overruled. He relies upon the following passage in the judgment at page 120 of the report:-- The deed therefore could not be registered there nor had the Court of Ordinary Original Jurisdiction at Fort William in Bengal any jurisdiction to entertain the suit upon the mortgage bond and its decree is of no validity.

(3.) On behalf of the plaintiff it is urged that the Bombay view has not been considered in that case, that the decisions of this Court were not cited before their Lordships and that even after the decision in Harendra Lal Roy Chowdhuri V/s. Hari Dassi Debi the Court of Appeal has adhered to the view taken in Holkar v. Dadabhai and that the practice in this Court has not been altered. Mr. Campbell has relied upon the unreported judgment of Scott C.J. and Heaton J. in Venkatrao Sethupathy V/s. Khimji Assur Virji (1916) 26 Bom. L.R. 535.