K VENKATRAO SETHUPATHY Vs. KHIMJI ASSUR VIRJI

JUDGEMENT

(1.) The plaintiffs who are mortgagees of the land, building and machinery of a Mill situate at Bellary under a mortgage of December 18, 1912, in the English form, have obtained the usual mortgage decree against the mortgagors, providing that on the defendants or any of them paying into Court on behalf of the plaintiff the sum of Rs. 1,11,302-12-6 for debt and interest thereon at the rate of six per cent, from January 1, 1916, with six monthly rests until payment and the costs of this suit when taxed and noted in the margin together with interest on such costs at six per cent, per annum from the date thereof till payment, the plaintiff do reconvey to the defendants the property in the mortgage comprised free and clear of and from all incumbrances done by the plaintiff or any person or persons claiming by, from or under him, and if default shall be made by the defendants in paying into Court such principal, interest and costs by the time named, then the plaintiff will be entitled to apply for a decree absolute for sale.

(2.) It may be inferred from the mortgagees power of sale under the mortgage which is confined to the mill machinery treated as removeable plant that the plant was the valuable part of the security granted and assigned.

(3.) The first respondent, however, appeals against the decree on the ground that the suit is a suit for land at Bellary and therefore not within the jurisdiction of the High Court under Clause 12 of the Letters Patent and he challenges the correctness of the decision of this Court in Holkar v. Dadabhai Cursetji Ashburner (1890) I.L.R. 14 Bom. 353. and the later case of Sorabji v. Rattonji (1898) I.L.R. 22 Bom. 701. The decision in Holkar v. Ashburner has for many years been followed in this Court as establishing that suits by mortgagees to enforce their rights under their mortgages are not suits for land within the meaning of Clause 12 of the Letters Patent. We are bound by that decision. Speaking for myself, it appeal s to me difficult to understand how a suit in which the mortgagee seeks to have the land vested in him under his mortgage sold to somebody else by the agency of the Court is a suit for land. It is a suit to realise and dispose of his and his debtors interests in the land. The object of the suit is not to obtain land or to obtain a declaration of title to land or to obtain damages for interference with land, but to obtain repayment of debt owing to the plaintiff and for that purpose to realise the security which has been vested in him. I can see no more reason for treating such a suit as a suit for land than there was in Nistarini .Dassi v. Nundo Lall Bose (1899) I.L.R. 26 Cal. 891. where the plaintiff sought to set aside leases granted by the defendant-executors for land outside the jurisdiction for holding it a suit in which the Court had no jurisdiction. Mr. Justice Stanley observed that the Court assumes jurisdiction in regard to immoveable properties situate outside the jurisdiction in cases where it can act in -personam either to compel the owner to give effect to legal obligations into which he has entered or to a trust reposed in him. The Judicial Committee in appeal expressly upheld this ruling of the Calcutta High Court in reference to jurisdiction: Benode Behary Bose v. Nistarini Dassi. (1905) I.L.R. 33 Cal. 180, p.c.