RASHBEHARI DAS Vs. MAHINDI PAL

JUDGEMENT

(1.) The facts necessary for deciding the preliminary objection raised on behalf of the respondents as well as for deciding the appeal on the merits may be stated as follows. One Netai Roy executed a mortgage in favour of the respondents, the Pals, in 1922. The property mortgaged was about 15 bighas of land in mouza Bhedua. In the bond the said properties were described as being within Thana and Sub-Registry Vishnu-pore in the district of Bankura. In 1926 the Pals sued on their mortgage. The suit was filed in the first Court of the Munsif at Vishnupore (Mortgage Suit No. 152 of 1926). It is admitted that thana Vishnu-pore was, and is within the territorial jurisdiction of the said Court. It is also admitted that the plaint filed contained the statement that the mortgaged properties were situate within the local limits of the first Court of the Munsif of Vishnu, pore. The defendant, Nitai Roy, appeared in the suit and raised no question about the place of suing. The suit terminated in a consent decree on 31 August 1926. To the decree (Ex. W) is attached a schedule of the mortgage properties which describes them as situate within police station and Sub-Registry Vishnupore. On the face of the proceedings of the said mortgage suit, and if no other evidence de hors the said suit be looked into, it would appear that the first Court of the Munsif of Vishnupore had territorial jurisdiction.

(2.) In 1927 the Pals applied for execution of the decree in the first Court of the Munsif at Vishnupore (Title Execution No. 754 of 1927). The judgment-debtor raised the objection that the decree was a nullity, as according to him all the mortgaged properties were situate within the jurisdiction not of the Munsif of Vishnupore but of Bankura (sadar). The Court how ever did not give effect to this large objection but ordered only the properties within its jurisdiction to be sold. It did not specify which of the properties were within its jurisdiction and which were not, but the order was passed in a general and vague form. The Nazir of his Court put all the mortgaged properties to sale which were purchased by the decree-holders. Their troubles begin from here. They, in the meantime, objected to the order of the learned Munsif which had directed the exclusion of such of the properties as were beyond his jurisdiction from the sale to be held by his Nazir and ultimately carried the matter in appeal to this Court (Appeal from Appellate Order No. 339 of 1927). This Court held that although the Court which had passed a mortgage decree had jurisdiction to sell properties included in the mortgage decree situate beyond its local limits, the decree-holders in this case would however acquire no title by their purchase of such of the properties as were beyond the local limits of the Vishnupore Court as the order of that Court had excluded them from the sale proclamation. After this judgment, which was pronounced on 19 July 1928, the respondents (decree-holders purchasers) commenced a suit for possession in 1930 (Title Suit No. 98 of 1930 of the Court of the Subordinate Judge, Bankura). In that suit the question of fact as to whether the mortgage properties were situate in thana Vishnupore or within thana Onda, within the jurisdiction of the Munsif at Bankura (sadar), was gone into. The Court found that all the mortgage properties were situate at the date of the mortgage suit (No. 152 of 1936) within the jurisdiction of the Munsif of Bankura and not of Vishnupore. On this finding the suit was dismissed by the trial Court and that decree was maintained by this Court by its judgment dated 24 January 1934 passed in Second Appeal No. 1193 of 1933. This Court held that the sale passed no title to the decree-holders purchasers, but at the same time observed that the said decision would not prevent them from taking whatever steps they may be entitled to take to bring these properties to sale in execution of the mortgage decree, if they can satisfy the Court before which they bring their claim that the mortgage decree was valid. It is this finding that the mortgage properties are in thana Onda within the jurisdiction of the Sadar, and the evidence led on behalf of the judgment-debtor on this point in the suit of 1930, and which was also given in these proceedings that have furnished the ground of objection of the appellants to the execution proceedings started on 2 May, 1934.

(3.) The course of these proceedings was as follows: The decree-holders applied in the first Court of the Munsif at Vishnupore for transfer of the decree to Bankura (sadar) with a certificate of non-satisfaction. The appellants, who are transferees for the mortgagor after the mortgage decree, were made parties to this application. On 23 August 1934 the order asked for was made. The appellants appeared at the Munsif's Court at Bankura when the application for execution was made after the decree had been transferred as aforesaid. On 23 February 1935 they applied there for stay of execution in order to enable them to raise in the Vishnupore Court their objection that the decree being according to them a nullity cannot be executed. On the stay being granted for a limited period they made their application to the Munsif at Vishnupore on 30 March 1935. The application was headed as one under Section 47, Section 151 and 0. 47, Rule 1 of the Code. In this application the whole history of the litigation is set out in great detail. The main prayer is for review of the order of transmission of the decree dated 23 August 1934, but the Court was also invited to hold that the decree was void and executable as it was passed by a Court which had no territorial jurisdiction over the subject matter. The learned Munsif, by his judgment dated 30 November 1935, held that the application for review was not barred by time and that the decree was a nullity being passed by a Court which had no territorial jurisdiction over the subject matter. In repelling one of the contentions of the decree-holders, he held that the appellants before us were not the representatives of the judgment-debtor, Nitai Roy, for though they had purchased the mortgaged properties, the mortgage itself was invalid, having been registered at a place where no part of the mortgaged properties were situate. This has furnished one of the grounds for the preliminary objection raised by the respondents to the competency of the appeal before us. On appeal however this judgment of the Munsif was reversed by the learned Subordinate Judge by his judgment dated 26 March 1936.