1872 IN THE MATTER OF OF S. J. LESLIE. only be set aside under s. 119, Act VIII of 1859, and not by an application by way of motion under 24 & 25 Vict., c. 104, THE PETITION 8. 15. On appeal the decree of the Judge was held to be valid. The Court which tried the case must be considered to have tried the question of jurisdiction—In re Foy (1). The defendant had been duly summoned, and without just cause failed to appear, therefore the decree was final. If the suit had been brought in Calcutta, there would have been an objection taken to the jurisdiction, as the property to be sold was in the 24-Pergunnas. The suit was one for sale in the ordinary form. The question turned upon the wording of s. 5, Act VIII of 1859 (2). The word "for" could not be construed merely in the sense "for possession of," but also meant "in respect of" land. A suit for redemption has been held to be a suit for land-Sreemutty Lalmoney Dossee v. Judoonauth Shaw (3). Suits for foreclosure have been considered as suits for land-Beebee Jaun v. Meerza Mahommed Hadee (4) and Blaquiere v. Ramdhone Doss (5). It was doubtful whether an order for sale of land situate in the Mofussil could be made by the High Court in its original jurisdiction-Denonauth Ruckhit v. Mutty Lall Paul (6). In cases of doubtful jurisdiction, objection must be taken in time-Bagram v. Moses (7). This suit being for sale of mortgaged property, it was rightly brought in the Court within whose jurisdiction the property was situate-Story's Conflict of Laws, s. 538. The decree of any other Court would not bind the property-Story's Conflict of Laws, s. 543. No suit for land in Calcutta could have been brought in any Civil Court in the Mofussil-Reg. III of 1793, s. 17. So much of that section as prevented the Dewanny Adawlut of the Zilla of the 24-Pergunnas from entertaining a suit against a person who (1) 1 Tay. & Bell, 219. perty shall be situate within the limits (3) 1 I. J., N. S., 319. (5) Bourke's Rep., 319. 1872 IN THE MATTER OF might become a resident within the limits of the town of Calcutta after the suit might be commenced, has been repealed by Act XXII of 1843, but no more. Nor could suits for land THE PETITION in the Mofussil against a person subject to the jurisdiction of this Court be brought in the High Court. The question of jurisdiction cannot be raised after the order of Glover and Mitter, JJ. Mr. Branson (in support of the rule).-The suit was for recovery of money. The decree was in the first part for money, and in the latter part relief was granted against Leslie personally. S. 5, Act VIII of 1859, relates to suits for possession of land. There is a difference in the wording of s. 5, Act VIII of 1859, and the wording of cl. 12, s. 1, Act XIV of 1859. The words in the latter are "recovery of immoveable property or of any interest in immoveable property." Under s. 5, Act VIII of 1859, neither a suit for foreclosure, nor a suit for redemption, is a suit "for" land, though the decisions are the other way. The decree in a suit for land can be executed only under ss. 190, 199, 223, and 224, Act VIII of 1859. None of these sections applies to the decree made in this suit. The suit was for recovery of money by enforcing a contract; and if the money was not paid, then for sale of the land. It was not for recovery of possession if the money was not paid. The defendant was described in the plaint as of Calcutta, therefore on the face of the plaint the question of jurisdiction arose. [MARKBY, J.-Can we set aside a decree in part, part being for sale of land, and part being a personal decree?] It was so set aside in Mannu Lal v. Pegue (1) for want of juris (1) Before Mr. Justice L. S. Jackson and Mr. Justice Mitter. The 18th November 1868. MANNU LAL (Plaintiff) v. Mr. T. W. Baboo Debendro Narayan Bose for the Mr. C. Gregory and Baboo Ashutosh JACKSON, J.-The Courts below have Special Appeal, No. 1211 of 1868, from a decree of the Officiating Judge of Patna, dated the 18th December 1867, affirming a decree of the Principal Sudder Ameen of that district, dated the 13th February 1867. OF S.J.LESLIE 1872 IN THE MATTER OF OF S. J. LESLIE. diction. The decree in this case was passed wholly without jurisdiction. Even if the decree was partially good, the part THE PETITION Which rendered Leslie personally liable was wholly without jurisdiction. (The Advocate-General.—We are not called on by the rule to argue that point.) The application was made on the authority of Mannu Lall v. Peque (1). The drawing up of the rule was with the officers of the Court. (The Advocate-General.I came to show cause against the rule as drawn up.) As to the question of jurisdiction of this Court, see Greesh Chunder Lahooree v. Kasheesuree Dabee (2), Showdaminee Dossee v. Manick Ram Chowdhry (3), Maharaja Dhiraj Mahtab Chund Bahadur . Shagor Kundu (4), In re Srimati Nassir Jan (5), and in re Durga Charan Sirkar (6). Even if the decree can be upheld so far as it related to the sale of the mortgaged premises, it cannot be upheld so far as it is a personal decree against Leslie. The Advocate-General in reply contended that the rule was as against the whole decree. A part of the decree could not be set aside under this rule. The judgment of the Court was delivered by MARKBY, J. (after stating the rule and the plaint, continued) held that the suit was barred by limit- (a) 9 W. R., 170. relates to the sale of the mortgaged property is really a suit to enforce an interest in immoveable property, being a charge created on that property by the bond in suit, and that it comes within the provisions of cl. 12, s. 1, Act XIV of 1859, and not within those of cl. 10. The decision of the lower Appellate Court is set aside, and this case will be remanded in order that a decision may be come to on the remaining issues ; bat, of course, the plaintiff's suit, in so far as he sought for a decree against the bor rower personally, was properly dismissed. (1) Ante, p. 175. (4) 5 B. L. R., App., 91. 1872 IN THE MATTER OF -The mortgage-deed is not before us, but it is stated to have been a conveyance by way of mortgage, and was made in Calcutta between Europeans: it was, therefore, probably in THE PETITION the ordinary English form. It contained a power of sale, and a covenant for repayment of the money. It is said that this was not a suit cognizable by the Judge of the 24-Pergunnas, because it was not a suit for land. It was contended that it was a suit upon a cause of action which arose in Calcutta, where the defendant was described as dwelling. There was some doubt whether the defendant in fact then resided in Calcutta or elsewhere, but it was admitted that the defendant was not dwelling, or personally working for gain in the district of the 24-Pergunnas when the suit was brought the plaintiffs however contended that the Judge of the 24-Pergunnas had jurisdiction, inasmuch as this was substantially a suit for land. OF S.J. LESLIE, I think that the plaint, so far as it asks for a sale of the mortgaged property in satisfaction of the mortgaged debt, is a "suit for land" within the meaning of s. 15 of the Code of Civil Procedure which regulates the jurisdiction in this case. Mr. Branson contended that these words should be read as signifying those suits alone in which the land itself is sought directly to be recovered. It was admitted that a much wider construction had been put by Macpherson, J., upon the similar words of the Charter of the High Court; that learned Judge holding that a suit for foreclosure by the mortgagee was as such a suit for land, in Bibee Jaun v. Meerza Mahommed Hadee (1), and that a suit for redemption was 80 also, in Sreemutty Lalmoney Dossee v. Juddoonauth Shaw (2), but it was contended that these decisions were not correct. We see no reason to suppose this. They have never been questioned as far as we are aware. On the contrary, the uniform practice of this Court on its Original Side has been in accordance with them. They are also supported by the decision in Surwan Hossein v. Shahazadah Golam Mahomed (3), where it was held that a suit brought to enforce a security against land was a (3) 9 W. R., 170. (1) 1 I. J., N. S., 40. 1872 IN THE MATTER OF OF S. J. LESLIE. suit for recovery of an interest in immoveable property within the meaning of cl. 12 of s. 1 of Act XIV of 1859. Upon the THE PETITION authority of these decisions, I hold that a suit for land includes suit in which a decree is asked for operating directly upon the land, and therefore includes any suit brought to enforce a security upon land. any It was contended, however, that this was a suit neither for foreclosure nor redemption, nor in any way to enforce a security upon land, but simply for money, to be recovered by the sale of the plaintiff's property through an attachment and sale in the usual way. This however is not so. It is perfectly well established that a decree in a suit like the present in the Mofussil Courts enables the plaintiff to sell the mortgaged property as it stood at the time of the mortgage, and clear of all subsequent incumbrances; and that such a sale completely bars redemption; whereas a suit brought simply on the provision to repay the loan will only enable the plaintiff to sell the interest which the defendant has at the time of execution. I think that we cannot upon this rule enter into any inquiry as to the origin or validity of a procedure so well established. This being so, I hold that this is a suit for land in the same sense that a suit for foreclosure or redemption on the Original Side has been held to be a suit for land. Lastly, it is said by Mr. Branson that the decree is, at any rate, without jurisdiction, so far as it directs execution to be taken out against the property of the defendant, other than the mortgaged property. This contention is to some extent right. The Judge had no jurisdiction to entertain a suit upon the covenant to repay. This has no connection with a suit for land; and so far as it is a cause of action, it did not arise within the 24-Pergunnas. Before, therefore, proceeding with this part of the suit, the leave of this Court should have been obtained. But then there is this difficulty in rectifying the error upon this application. The Judge of the 24-Pergunnas had authority to order the mortgaged property to be sold; he had also authority to find what sum was due from the defendant to the plaintiff upon the mortgaged security; he had also authority to order the defendant to pay costs. Now we have not the actual |