The judgment emphasizes the jurisdiction of Indian Courts over immovable property in another country, the principles governing adjudication on such property, and the circumstances under which claims for mesne profits may be entertained.

Macnair, A J C—The plaintiff-appellant sued the defendant for the recovery of mesne profits in respect of certain immovable property in Gwalior State. He stated that his right to the property had been decided by a judgment of that State and that the defendant resided within the jurisdiction of the Khamgaon Court.

2. The main defence was that an appeal was pending against the Gwalior decision, so that under the explanation to Section 10, Civil P.C., the Courts in British India would still have be decide the question of the plaintiff's title to the property. The learned Judge held that, as it would be necessary to go into the question of the plaintiff's title to lands situate outside British India, he had no jurisdiction to try the case and returned the plaint for presentation to the proper Court.

3. The plaintiff has appealed against this order. The respondent admits that the plaintiff's title to the property has been finally upheld by the Gwalior Court, and does not contend that the order was incorrect because the state of affairs was different when it was passed. It is then not disputed that the suit should have been kept pending till the final decision of the title suit in Gwalior, if that final decision gives the plaintiff a right to sue in the British Courts.

4. Section 20., Civil P.C., permits, subject to the limitations contained in the preceding sections, a plaintiff to sue in a Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides. Section 16 has no application to this case, for the explanation states that in this section ''property'' means ''property situate in British India.'' The Civil Procedure Code then does not forbid the institution of the suit such as the present even if the decision in the suit involves adjudication regarding the plaintiff's title to immovable property outside British India.

5. There is, however, a general principle which prevents the trial of a suit involving such adjudication. In Goculdas v. Chaganlal, 1927 AIR(Cal) 768, Page, J., was considering the interpretation of a clause of the Letters Patent (1865), but passage cited by him shows that Indian Courts are, apart from specific provisions limiting their jurisdiction, under the necessity of avoiding the insuperable difficulties which would result from an attempt to found a jurisdiction over immovable property situate in another country.

6. The following passages show the nature of the principle: (Foote's Private International Law, page 228). - ''The defendant's Judge'' wrote Vattel, ''is the Judge of the place where the defendant has his settled abode or the Judge of the place where the defendant is when any sudden difficulty arises, provided it does not relate to an estate in land, or to a right annexed to such an estate. In such a case, as property of this kind is to be held according to the laws of the country where it is situated, and as the right of granting it is vested in the ruler of the country, controversies relating to such property can only be decided in the State in which it depends.'' - (B 2 Ch. 8 Section 103.)

7. Story lays down that: in respect to immovable property, every attempt of any foreign tribunal to found a jurisdiction over it must, from the very nature of the case, be utterly nugatory and its decree must be for ever incapable of execution in rem. We have seen, indeed, that by the Roman law a suit might in many cases be brought either where the property was situate or where the party had his domicile. This might well be done within any of the vast domains over which the Roman Empire extended; for the judgments of its tribunals would be everywhere respected and obeyed. But among the independent nations of modern times there would be insuperable difficulties in such a course. And hence even in countries acknowledging the Roman law it has become a very general principle that suits in rem should be brought where the property is situate : and this principle is applied with a