DORAB ALLY KHAN Vs. ABDOOL AZEEZ

JUDGEMENT

(1.) THIS is an appeal against a decree of the High Court of Calcutta, sitting as a Court of Appeal, which, on the 23rd of August, 1875, affirmed the judgment of Mr. Justice Phear, who, in the exercise of the original civil jurisdiction of the same Court, had, on the 22nd of April, 1875, dismissed the Appellant's suit with costs.

(2.) THE suit was instituted in December, 1872, by the Appellant suing as executor of one Dianut-ut-Dowlah against Khajah Moheeooddeen, who died after leave to appeal had been given in India, and is represented by the present Respondents. The case was tried in India upon only the first and preliminary issue, viz., whether or not a good cause of action was disclosed in the plaint. It is, however, conceded that the statements in the plaint may be taken to be supplemented by, and to include any fact stated, or to be inferred by necessary implication from the written statement of the Plaintiff, or the documents annexed to and filed with either that or the plaint itself, These are the sheriff's bill of sale of the 9th of October, 1866; a petition of Dianut-ut-Dowlah to the Judicial Commissioner of Oudh and the order thereon; the will of Dianut-ul-Dowlah and the certificate granted to the Plaintiff as the executor named therein; the writ of fi.fa., dated the 18th of June, 1866; and the warrant of attorney to confess judgment in the action in which that writ was issued. For the trial of the issue, which is in the nature of a trial on demurrer, the facts stated or to be implied as above mentioned must be taken to be true.

(3.) MR . Justice Phear, in the course of his judgment, made some attempt to support the regularity of the seizure and sale of the property under the writ of fi. fa. In their Lordships' opinion, the decree under appeal cannot be supported upon any such ground. The illegality of these proceedings is sufficiently alleged, and the objection to them is patent on the face of the plaint. The jurisdiction of the late Supreme Court, and of the sheriff as its officer, was originally limited by the Charter of Justice of 1774 to the provinces of Bengal, Behar, and Orissa, and though afterwards extended by the 39 & 40 Geo. 3, c. 79, Sections 20, was so extended only to the province or district of Benares, and to and over all such provinces and districts as might at any time thereafter be annexed to and made subject to the Presidency of Fort William. The writ of fi. fa., which was the sheriff's authority for the seizure, was carefully framed in accordance with this definition of his jurisdiction. If, therefore, he seized property in any place which did not form part of, and had not been annexed to, the Presidency of Fort William, he was as much a trespasser as an English sheriff who had ' seized property out of his bailiwick would be. That the province of Oudh was not, when first annexed to British India, or at the date of the execution, annexed to the Presidency of Fort William, if not one of those historical facts of which the Courts in India, are bound, under the Indian Evidence Act, 1872, to take judicial notice, was at least an issue to be tried in the cause.