Judgement

Appeal from a judgment and decree of the High Court (March 3, 1916), affirming a decree of the Subordinate Judge of Vizagapatam.

The suit was brought by the respondent in the Court of the Subordinate Judge of Vizagapatam to enforce a mortgage over land which was situate partly in the district of Vizagapatam and partly within the district, commonly known as the Agency Tracts, which by Act

XXIV. of 1839 is a scheduled district.

The facts and the effect of the decisions in India appear from the judgment of their Lordships.

1919. Feb. 13, 14. Sir William Garth for the appellants. The High Court rightly held that upon the true construction of the mortgage deed of July 4, 1911, the principal was not due until January 4, 1916. The respondent not being entitled at the date of the suit to sell the property for the principal, the High Court wrongly held that the decree for sale could stand. The rights of the parties in a suit depend solely upon the position at the date of the plaint Evans v. Bagshaw (( 1870) L. R. 5 Ch. 340.); Buys v. Royal

Law Rep. 46 Ind. App. 151 ( 1918- 1919) Raja Setrucherla Ramabhadra Raju V. Maharaja of Jeypore 29

Exchange Assurance Corporation ([ 1897] 2 Q. B. 135.) ; Ram Rattan Sahn v. Mohant Sahn. (( 1907) 6 Cal. L. J. 74.) The fact that the due date arrived pending the appeal, therefore, did not increase the respondents rights. Secondly, part of the mortgaged land being in a scheduled district, neither the Subordinate Judge nor the High Court had jurisdiction Maha Prasad v. Ramani Mohan Singh. (( 1914) L. R. 41 I. A. 197.) Sect. 17 of the Code of Civil Procedure, 1908, applies only where each of the different Courts within whose jurisdiction the land is situate is a Court subject to the Code. The decision of the Board in the case last cited shows that the whole decree is invalid, not merely that part of it which ordered a sale of the land in the Agency Tracts. The objection to the jurisdiction was taken at the hearing in the High Court; that was not too late. In Maha Prasad1 s Case (4) the objection was taken only during the hearing before the Board. Sect. 21 of the Code applies only where the right " place of suing " is one subject to the Code. In the present case there was an entire absence of jurisdiction under the Code, at any rate so far as concerns the land in the Agency Tracts.

De Gruyther K.C. and Kenworthy Brown for the respondent.

Upon the true construction of the deed of July 4, 1911, the respondent was entitled at the date of the plaint to recover principal and interest, there being a default in the payment of the yearly interest. The words " the said amount " (at the end of the deed) refer to the principal and interest. If not, they are otiose, because under the covenant to pay interest it could be recovered " then and there. But in any case the due date having been passed at the date of the appeal, the High Court rightly affirmed the decree made. There was power to do so under Order xli., r. 33. Although part of the land was in the Agency Tracts, the Subordinate Judge had jurisdiction under s. 17 of the Code of Civil Procedure. That section is wider than the corresponding provision in s. 19 of the Code of 1882, and applies so long as the suit is brought in a court subject to the Code. Act XXIV. of 1839 provided that suits arising in the Agency Tracts should be brought in particular courts, but otherwise it did not affect procedure, as appears from the rules made under that Act see Madras Code, 4th ed., vol. 2, Appendix, p. 1264. The decision of the Board in Maha Prasads Case (L. R. 41 I. A. 197.) depends entirely upon legislation peculiar to the Sonthal Parganas. In any case, there was power to decree a sale of the land not in the Agency Tracts ; otherwise the respondent cannot enforce the mortgage by sale at all.

Sir William Garth in reply. Apart from the provisioh in the deed the interest in default was not recoverable Kannu v. Natlsa. (I. L. R. 14 M. 477.) It therefore is not necess