RAJARAM TUKARAM Vs. CENTRAL BANK OF INDIA LTD

JUDGEMENT

(1.) In this suit the defendant bank in their written statement admit that paras. 1 to 3 of the plaint are correct; and the point at issue is a purely legal one, which has been argued without the necessity of taking any evidence. The defendant bank brought a suit, No. 3965 of 1924, against the plaintiff trading in the name of S. Narayen & Co., to enforce an equitable mortgage created by the plaintiff in their favour, and, on December 9, 1924, by consent, a preliminary decree was passed in favour of the bank. That decree was superseded by a final decree for sale on July 16, 1925. The mortgaged property was situated at Andheri, which admittedly is outside the local limits of the ordinary original civil jurisdiction of this Court. But at that time, according to the ruling in Yasvantrao Holkar V/s. Dadabhai [1890] 14 Bom. 353, the Court had jurisdiction, both because according to that ruling a suit on a mortgage was not a suit for land within the meaning of Clause 12 of the Letters Patent of this Court, and also because the mortgagor, the present plaintiff, carried on business in Bombay within the limits of this Court's original jurisdiction. Yasvantrao Holkar V/s. Dadabhai [1890] 14 Bom. 353 was, however, overruled by a Full Bench of this Court on August 21, 1925, in the case of India Spinning & Weaving Co. Ltd. V/s. Climax Industrial Syndicate 27 Bom. L.R. 1281. Accordingly, the present suit was brought against the bank on February 12, 1926, and it is submitted in para. 4 of the plaint that this Court had no jurisdiction to entertain the suit, No. 3965 of 1924, and that all the proceedings taken under that suit and the decrees passed therein are nullities and are void and of no effect. It is stated in para. 5 that under the final decree for sale the Commissioner for taking accounts had advertised the mortgaged property to be sold by public auction on February 22, 1926, notwithstanding the objection raised by the present plaintiff that in view of the Full Bench decision the decrees passed in the suit were nullities and the Commissioner ought not to proceed with the sale. The sale has been restrained pending the decision of this suit. The defendants contend that at the time the decrees in question were passed this Court had jurisdiction to entertain the suit in question, and that the said decrees are not void and of no effect. Accordingly, they say that the sale of mortgaged property in pursuance of the final decree, dated July 16, 1925, should be allowed to be proceeded with; and the defendants In particular contend that the question of jurisdiction was directly and substantially in issue in Suit No. 3965 of 1924, and should have been raised as a ground of defence by the present plaintiff in that suit. They submit, therefore, that the question of the jurisdiction of the Court over the subject-matter of the Suit No. 3965 of 1924 is res judicata and cannot be tried in this suit. On these pleadings the following issues have been raised: 1. Whether the decree ire Suit No. 3965 of 1921 passed on July 17, 1925, is a nullity?

(2.) Whether the present suit is not barred by res judicata?

(3.) Whether the plaintiff did not waive want of jurisdiction if any and whether he is not estopped by his conduct from raising the plea of jurisdiction?