(1.) The opposite party No. I in this Rule instituted a suit in the Court of the Subordinate Judge at Alipore for specific performance of a contract for lease of a certain property situated in the District of Burdwan. The contract is said to have been originally entered into by one Kundan kal Kapur of Burdwan and the defendants Nos. 1 and 2, who are the opposite parties Nos. 2 and 3 in the present Rule, are the executors under the Will of Kundan Lal and took out Probate of his Will. It was alleged in the suit that, subsequent to the agreement of granting a lease in favour of the plaintiff, the defendant No. 1, on the 22 August, 1920, granted a lease to defendant No. 3 who took it with notice of the prior agreement in favour of the plaintiff. The plaintiff accordingly prayed for specific performance of the agreement to grant him the mining lease on declaration that the defendant No. 3 acquired no right, title or interest under the lease of 22 August, 1920.
(2.) The defendant No. 3 inter alia pleaded that the Alipore Court, where the suit was instituted, had no jurisdiction to entertain it. A preliminary objection was accordingly raised but it was decided in favour of the plaintiff and, therefore, this Rule was obtained by the defendant No. 3.
(3.) The learned Subordinate Judge was of opinion that as between the plaintiff and the principal defendants, by which we think he meant the defendants Nos. 1 and 2, there was no question of determination of any right to the property and that the main relief for specific performance of the contract could be obtised through the personal obedience of the defendants and as such the suit could be tried by the Alipore Court having regard to the proviso to Section 16 of the Civil Procedure Code. Then the learned Subordinate Judge says: "The only point that can be urged against this view is that it is also prayed that defendant No. (sic) right be declared to be a nullity. This point, however, arises incidentally in the case." But so far as the prayer against the defendant No. 3 is concerned, the case comes under Section 16 of the Code and the proviso to that section cannot apply to defendant No. 3 as he does not reside within the jurisdiction of the Alipore Court.