Judgement

Appeal (No. 70 of 1930) from a decree of the Court of the Resident in Mysore, Bangalore (July 14, 1928) reversing a decree of the District Judge, Civil and Military Station, Bangalore (November 12, 1925).

The above named respondent instituted a suit in the Court of the District Judge against a defendant, who was a pro forma respondent to the present appeal, claiming a simple decree for money lent at Madras, and in default of payment the sale of properties in the Civil and Military Station, the documents of title of which he alleged had been deposited as security. The original defendant admitted the claim, but the present appellant, a creditor of his who had attached the properties, having obtained an order adding him as a defendant disputed that the deposit at Madras created a mortgage or entitled the plaintiff to a decree for sale.

The trial judge made a simple money decree, but dismissed the claim for a sale decree. An appeal to the Court of the Resident was allowed and a mortgage decree was made. The grounds of the decisions appear from the judgment of the Judicial Committee.

1931. April 30; May 1. De Gruyther K.C. and E. B. Raikes K.C. for the appellant.

Dunne K.C. and Narasimham for the respondent.

June 4. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. This is an appeal from a judgment of the Court of the Resident in Mysore at Bangalore reversing a judgment of the District Judge of the Civil and Military Station of Bangalore, and decreeing the plaintiffs suit on a mortgage of immovable properties in Bangalore effected by deposit of title deeds in Madras. The question is whether such a mortgage is valid.

The Civil and Military Station is an area within the territory of the Mysore State, as to which plenary jurisdiction has been transferred by treaty to the British Government, and is governed by the Indian (Foreign Jurisdiction) Order in Council of June 11, 1902, made under the Foreign Jurisdiction Act, 1890. Clause 4 empowers the Governor-General of India in Council to make rules and orders for territories such as this " (a) for determining the law and procedure to be observed, whether by applying with or without modifications all or any of the provisions of any enactment in force elsewhere, or otherwise."

A notification of the Government of India of January 16, 1917, made under the aforesaid Order in Council and in supersession of an earlier notification, contains a lengthy schedule of British Indian enactments which are declared to apply to the Civil and Military Station of Bangalore " in so far as the same may be applicable thereto," and subject to any amendments for the time being in force in British India.

References in such enactments to British India are to be read as referring to the Civil and Military Station. No. 37 is the Transfer of Property Act IV. of 1882.

The notification contains a further proviso to the effect that the enactments in question are to be applied mutatis mutandis to the Civil and Military Station " Provided, first, that in the enactments as so applied except where the context or the modifications hereinafter referred to otherwise require, references to a Local Government, the Chief Commissioner, the Chief Controlling Revenue Authority or the Chief Revenue Authority shall be read as referring to the Resident in Mysore ; references to a Secretary to a Local Government as referring to the First Assistant to the Resident in Mysore ; references to a High Court as referring to the Court of the Resident in Mysore ; and references to British India or the territories subject to a Local Government as referring to the said Civil and Military Station of Bangalore

" Provided, secondly, that the further modifications and restrictions set forth in the said schedule shall be made in the said enactments as so applied

" Provided, thirdly, that for the purpose of facilitating the application of the said enactments, any Court in the said Civil and Military Station of Bangalore may con