JUDGMENT

Leach, J - On 18th December 1933 reported as 1934 Rang 35--I dismissed this suit on the ground that this Court had no jurisdiction to try it. The plaintiff was seeking to enforce an equitable mortgage claimed in respect of property situate in Mandalay. I held that the suit was a suit for land within the meaning of Clause 10, Letters Patent, and as the mortgaged property was not within the limits of the Court's jurisdiction I had no power to decide the case. The plaintiff was therefore left to seek his remedy in the District Court of Mandalay. The plaintiff now asks that the plaint be returned to him for filing in that Court. His application is opposed by the Government Advocate on behalf of the Collector, the contention being that the law as it stands at present does not allow the plaint to be returned, and that the plaintiff must file a fresh plaint in the District Court which will involve paying another court-fee.

2. Order 7, Rule 10, Civil P.C., provides that the plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted, and that on returning a plaint the Judge shall endorse thereon the date of the presentation and return, the name of the party presenting it and a brief statement of the reasons for returning it. Sir Dinsbah Mulla in his notes on this Rule points out that the words "at any stage of the suit" were added to give effect to the Full Bench decision of the Bombay High Court in Prabhakarbhat v. Vishwambhar (1884) 8 Bom. 313 (F.B.), in which it was held that a plaint may be returned to be presented to the proper Court, even after the trial has begun and concluded. Order 49, Rule 3, however provides that Order 7, Rule 10, shall not apply to Chartered High Courts. The reason is that Chartered High Courts have power to frame their own rules. No rule on this subject has in fact been framed by this Court, and therefore there is no direct provision of law which I can apply, but it is urged on behalf of the plaintiff that the Court has inherent power to order the plaint to be returned for filing in the proper Court. For reasons which I will state I consider that this is the correct view.

3. The inherent powers of the Court have been invoked in cases of art, analogous nature. In C.T.A.M. Chettyar Firm v. Ko Yin Gyi 1929 Rang. 158, a Bench of this Court called in aid its inherent powers in order to sanction a refund of the stamp duty paid on an application for review filed in the alternative, but which the applicants were justified in filing as the result of an error on the part of the Court. In Galstaun v. Janki Nath 1934 Cal. 615, a Bench of the Calcutta High Court granted, in the exercise of the inherent powers of the Court, a certificate entitling an appellant to a refund of court-fees paid on a memorandum of appeal which had not been registered on the ground that it was out of time, the delay not having been caused by the appellant. When this suit was filed Das, J., sitting on the Original Side of this Court, had held that a mortgage suit was not a suit for land within the meaning of Clause 10, Letters Patent, and that the Court had jurisdiction to try such a suit, although the mortgaged property was outside the limits of the Court's jurisdiction. The same view had also been taken by Shaw, J. In these circumstances the plaintiff was justified in filing his suit in this Court. The suit was not decided because I was not bound by these decisions, and I took the view that a mortgage suit was a suit for land. I might mention that the question whether a mortgage suit is a suit for land has since been considered by a Full Bench of this Court and a binding decision will now be given: V.E.R.M.N.C.T. Chettyar v. A.R.A.R.M. Chettyar Firm 1934 Rang. 250.

4. The plaintiff filed his suit in this Court in the belief that he would obtain from it an adjudication on his claim. He did not obtain an adjudication because the case happened to come before a Judge who diff