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1935 Supreme(Nagpur) 3
NAGPUR JUDICIAL COMMISSIONERS COURT
Subhedar, Niyogi, Staples
MURLIDHAR SHRINIWAS – Appellant
Versus
GORAKHRAM SADHURAM, FIRM, BOMBAY, AND OTHERS – Respondent
First Appeal No. 166 of 1933
Decided on : 11-09-1935
M D Khandekar, T J Kedar, V Bose, W R Puranik, Advocates
The central legal point established in the judgment is the jurisdiction of the Court to pass a decree and transfer the writ of possession, and the ability of an executing Court to question the validity of a decree where jurisdiction is involved.
Headnote:
Jurisdiction - Equitable Mortgage - 51 Bom 516, 43 Mad 675 - O. 21, Rr. 95 and 96, Civil P.C.
Fact of the Case:
The High Court of Bombay passed a preliminary decree for sale on the foot of an equitable mortgage. The properties were sold in execution, and the purchaser sought possession. An objection was raised regarding the jurisdiction of the Bombay High Court to pass the decree and transfer the writ of possession to another court.
Finding of the Court:
The Court found that the Bombay High Court had no jurisdiction to pass the decree and sell the properties. Therefore, the lower Court had no jurisdiction to place the purchaser in possession of the properties.
Issues: Jurisdiction of the Bombay High Court to pass the decree and transfer the writ of possession, objection raised by the judgment-debtor regarding jurisdiction.
Ratio Decidendi: The Court held that the Bombay High Court had no jurisdiction to pass the decree and sell the properties. It also stated that an executing Court can question the validity of a decree where the question of jurisdiction is involved.
Final Decision: The appeal was accepted, the order of the lower Court directing delivery of possession was set aside, and the purchaser was ordered to return the writ to the Bombay High Court. The purchaser was also directed to pay the costs of the appellant in both the Courts and bear his own.
1. In Civil Suit No. 374 of 1931 the High Court of Bombay on its original side passed a preliminary decree for sale on the foot of an equitable mortgage in favour of the firm of the ''Gorakhram Sadhuram'' against Hatimbhai Hassanally v. Framroz Eduljee, 1927 AIR(Bom) 278 Rangnath Khemraj, India Spinning and Weaving Co., Ltd. v. Climax Industrial Syndicate,1926 AIR(Bom) 1 Shrinivas Khemraj; N. Lakshimikantham v. Krishnaswamy Mudaliar,1904 27 ILR(Mad) 157 Murlidhar Shrinivas, a minor and Kanti Chunder Pal v. Kissory Mohun Roy,1892 19 ILR(Cal) 361 n the Official Assignee of the estate of the first two defendants. In due course this decree having been made absolute the mortgaged properties were sold in execution, in several lots, in Bombay, by the Commissioner of the High Court for taking accounts and some of them were purchased by the plaintiff decree-holder who duly obtained a certificate under O. 21, R. 94, Civil P.C. On the application of the purchaser for being placed in possession of the properties comprised in lots Nos. 3 and 4, which are situate in the District of Wardha, a writ of possession, under O. 21, Rr. 95 and 96, Civil P.C., was issued, addressed to the Sheriff of Bombay, ordering him to place the purchaser in possession of the said properties. The aforesaid writ of possession was however forwarded to the District Judge, Wardha, by the Prothonotary and Senior Master of the Bombay High Court under cover of a letter dated 10th July 1933, which runs as under : Sir, I have the honour to forward herewith one duplicate writ of possession under O. 21, Rr. 95 and 96, Civil P.C., for favour of being executed through your Court. The said writs have as usual been addressed to the Sheriff of Bombay, but as the property is situated at Wardha within the jurisdiction of your Court they are to be executed through you.
2. On the basis of the aforesaid letter and the writ of possession proceedings in execution were started by the First Additional District Judge, Wardha, for placing the purchaser in possession of the said properties. An objection was however raised on behalf of Murlidhar (defendant-judgment-debtor 3) against delivery of possession of the properties to the purchaser. The principal grounds of the objection were that as the properties comprised in the equitable mortgage and the decree were wholly situate outside the jurisdiction of the Bombay High Court it had no jurisdiction to pass the decree and sell the properties and that the transfer of the writ of possession by that Court to the Wardha Court being unauthorised by law it could not be executed by the latter Court. These objections were however overruled by the Additional District Judge who held, on the authority of 51 Bom 516 that the High Court had jurisdiction to pass the decree and sell the mortgaged properties and that it could also send the writ of possession to the Wardha Court for execution. It is against this order that the present appeal is filed by the objector judgment-debtor 3. The same points, which were urged in the lower Court, were pressed for the appellant in this Court. It was firstly contended that the decree in execution of which the plaintiff-respondent purchased the properties was a nullity because the High Court of Bombay had no jurisdiction to pass it for the reason that all the properties comprised in the equitable mortgage, on which the suit was founded, were situate outside the jurisdiction of that Court. It was submitted that 51 Bom 516 did not interpret the law correctly and reliance was placed on and 12 Rang 370 V.E.R.M.N.C.T. Chettyar v. A.R.A.R.R.M. Chettyar Firm, 1934 AIR(Rang) 250 in which a contrary view on the same-point has been taken. For the respondent (decree-holder purchaser) it was urged that 51 Bom 516 was correctly decided and on the authority of 43 Mad 675 Zamindar of Ettiyapuram v. Chidambaram Chetty, 1920 AIR(Mad) 1019 it was also urged that the objection to the jurisdiction could not be entertained in execution
