Nalum Lakshimikantham and Another vs Krishnasawmy Mudaliar and Others

Moore, J.—The following preliminary issue has been framed in this case:-Has the Court jurisdiction to try this suit? This is a suit in which the

Plaintiff prays inter alia that certain lands, the title-deeds relating to which were deposited with him by the Defendants, may be sold and the

proceeds applied to the payment of the debt due to him by them. It is admitted that all the lands are situated outside the original jurisdiction of this

Court, and the question that is raised in the preliminary issue is as to whether a suit framed for a decree for sale of certain lands mortgaged to the

Plaintiff by the Defendants is a suit for land or other immoveable property within the meaning attached to those words in Clause 12 of the Letters

Patent. In Clause 12 the phrase used is ""suits for land or other immoveable property"" and identically the same words are used in the first CPC

(Vide Section 5 of Act VIII of 1859). In the present CPC this expression has been greatly elaborated and it runs now (Section 16, Act XIV of

1882) as follows:

Suits-

(a) for the recovery of immoveable property,

(b) for the partition of immoveable property,

(c) for the foreclosure or redemption of a mortgage of immoveable property,

(d) for the determination of any other right to or interest in immoveable property,

(e) for compensation for wrong to immoveable property,

(f) for the recovery of moveable property actually under distrait or attachment.

The question it appears to me that really arises in this case, is whether the phrase ""suit for land or other immoveable property"" can be held to

include all or, if not all, any and if so which of the above mentioned suits. This question has never, as far as I can ascertain, been decided by the

Madras High Court. A question similar to, but not identical with, that now under consideration arose in the case of Nagamoney Mudalliar v.

Janakiram Mudalliar ILR 18 Mad. 142 but it was not decided. That was a suit for the redemption of a mortgage. The point that came before the

High Court was whether, where permission to institute such a suit had been granted by the Registrar, it was open to the Judge before whom the

suit came for trial to entertain the objection that the order granting permission was illegal. The Judges on appeal held that it was open to the Judge

to consider the legality or otherwise of the order, and the case was accordingly sent back to him with a view to this being done. I have ascertained,

however, that eventually the suit was withdrawn and that the question at issue as to jurisdiction was not decided. In Seshagiri Rau v. Rama Rau

ILR 19 Mad. 448 the question that arose was whether a suit for partition of family property was a suit for land within the meaning of Clause 12 of

the Letters Patent. The High Court held that such a suit was a suit for land or other immoveable property and that the High Court had, therefore,

no jurisdiction to try the suit as the land was situated wholly outside the limits of their local jurisdiction. These appear to be the only Madras cases

bearing on the question now at issue. There are, however, two decisions of the other High Courts which are directly on the point now under

consideration. They are those of Venkoba Balshet Kasar v. Rambhaji Valad Arjun 9 B.H.C.R. 12 and In the matter of the petition of S.J. Leslie 9

B.L.R. 171. In Venkoba Balshet Kasar v. Rambhaji Valad Arjun 9 B.H.C.R. 12 the question was whether a suit for the recovery of a mortgage

debt by the sale of the mortgaged property was a suit for land within the meaning of Section 5 of the Code of CPC then in force, i.e., Act VIII of

1859. The High Court held as follows: ""We think that this is not a suit for land within the meaning of Section 5 of Act VIII of 1859. Comparing

that section with Sections 223 and 224 of the Code, we think that a suit for land is a suit which asks for delivery of the land to the Plaintiff."" A

diametrically different decision was arrived at by the Bengal High Court in the decision in the matter of the petition of S.J. Leslie 9 B.L.R. 171.

That also was a suit brought upon a mortgage praying for a decree for the amount due there under, and that in default of payment the land

mortgaged might be sold. It came before a Bench in appeal, and the Judges, Mark by and Ainslie, JJ., held that the suit was a suit for land. In his

judgment Markby, J., observes as follows: ""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 Section 5 of the CPC (Act VIII of 1859) 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 he recovered. It was

admitted that a much wider construction had been put by McPherson, 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 Janu v. Murza Mahommed Hadee 1 I.J.N.S. 40

and that a suit for redemption was so also, in Sreemuthy Lalmoney Dassee v. Juddornath Shaw 1 I.J.N.S. 319, 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 Suruan Hassein v.

Shahazadah Gulam Mahomed 9 W.R. 170 where it was held that a suit brought to enforce a security against land was a suit for the recovery of an

interest in immoveable property within the meaning of Clause 12 of Section 1 of Act XIV of 1859. Upon the authority of these decisions, I hold

that a suit for land includes any 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."" I am of opinion that this last decision In the matter of the petition of Leslie 9 B.L.R. 171 is correct and should be

followed. I would indeed be prepared to go further and to hold that the phrase ""suit for land or other immoveable property"" as used in Clause 12

of the Letters Patent includes all suits mentioned in Clauses (a), (b), (c), (d), (e) and (f) in Section 16 of the present Code of Civil Procedure. That

Section appears to me in fact to be simply an amplification with details of the old section of the Act of 1859, on which the clause in the Letters

Patent was, it appears, based. I consequently hold that this is a suit for land lying wholly outside the ordinary original jurisdiction of the High Court

and consequently decide the preliminary issue in the negative. It follows that this suit must be dismissed with costs (2 sets).