SATYABRATA SEN Vs. GOPAL DAS AURORA, AND CO

JUDGEMENT

(1.) In this case the plaintiff is the appellant before us. What happened is as follows: The plaintiff lent and advanced in Calcutta on 18 July 1924, a sum of Rs. 5,000 to the defendants named in para. 4 of the plaint, the said defendants executing a promissory note for the said amount. It appears that at the time when the said advance was made the title- deeds of a certain property outside the territorial jurisdiction of this Court were deposited with the plaintiff as collateral security for the said amount. The defendants not having repaid to the plaintiff the amount of the principal and of the interest which had accrued due, the plaintiff presented a plaint in this Court on 10 August 1927, for admission praying for a declaration that an equitable mortgage had been created by the deposit of the said title-deeds and for the usual mortgage decree. No part of the mortgaged premises being situate within the jurisdiction of this Court, the plaintiff prayed for leave under Clause 12 of the Letters Patent to institute the suit in this Court. Costello, J. refused such leave and his order was as follows: Following the established practice of this Court I refuse leave under Clause 12 of the Letters Patent. The plaint is therefore rejected I express no opinion of my own as to whether or not the established practice is well founded having regard to the terms of Clause 12 and certain decisions thereon in other High Courts.

(2.) It is against this order of Costello, J., that the present appeal has been preferred Mr. Banerjee who appeared for the appellant contended that the practice of this Court not to entertain suits for enforcement of mortgage of premises situate outside the jurisdiction of this Court is not correct and in support of his contention he relied on the Full Bench case in the Bombay High Court: Hatimbhai Kassanally V/s. Framroz Eduljee A.I.R. 1927 Bom. 278. He also drew our attention to several Cases decided in this Court and contended that the practice hitherto followed in this Court is not warranted, having regard to the fact that, at any rate, a part of the cause of action had arisen within Calcutta and that the whole question should be reviewed by us.

(3.) We have not had the advantage of having the question argued on behalf of the respondents to this appeal, and in the absence of any argument on behalf of the respondents and speaking for myself, I am by no means satisfied that the practice hitherto followed in this Court is wrong and should be departed from, nor am I convinced that the decision of the majority of the Full Bench in the Bombay High Court is one which should be followed In my view this appeal should be dismissed. Buckland, J.