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Suiti Devi v. Seth Banarsi Das Bhagwan Das
Factual and Procedural Background
The dispute arose from the sale and subsequent possession of a flour mill and ice factory at Aishbagh, Lucknow, originally owned by Karaundia Industrial Development Co. Ltd. The company went into liquidation and the property was sold by the liquidators to two brothers, Rangnath Khemraj and Srinivas Khemraj. The purchasers created an equitable mortgage over the mill and factory in favour of the Central Bank of India Ltd. The brothers were adjudicated insolvent and the property vested in the official assignee.
The Central Bank instituted a suit in the High Court of Bombay (Original Side) to enforce its mortgage. During the suit the Bombay High Court appointed Mr. H. C. Captain as receiver with power to work or lease the mill for up to three years; a preliminary decree and later a decree absolute for sale were passed in the Bank’s favour. The receiver granted a one-year lease (1 March 1931 to 28 February 1932) to Devidut Sukhramdas (who acted through a power of attorney in favour of Lala Jagannath Bansidhar Banka). After expiry, the lessee remained in possession and paid rent until his death in January 1942; his widow Manbhari alias Suitidevi executed a general power of attorney in favour of Lala Jagannath Banka, who continued to manage the premises.
In execution of the decree the mill and factory were sold to Seth Banarsidas Bhagwandas on 17 April 1943. The receiver issued notices (on the purchaser’s behalf) calling upon the lessee and the widow to vacate; possession was not delivered despite confirmation of the sale by the Bombay High Court on 21 September 1943. The purchaser sued for ejectment and damages (Rs. 36,000), impleading (1) Firm Sukhramdas Devidut; (2) Manbhari (widow); and (3) Lala Jagannath Bansidhar Banka as defendants.
The Civil Judge of Malihabad held that the Bombay High Court had jurisdiction to sell the properties and that the purchaser had acquired title; he found valid notices to quit had been served and decreed ejectment (with damages to be quantified later). The lessees appealed, urging principally (1) lack of jurisdiction of the Bombay High Court to sell property outside its territorial limits, and (2) that as the tenancy was for manufacturing purposes the appellants could be ejected only after six months' notice expiring with the end of February in any year.
Legal Issues Presented
- Whether the Bombay High Court (in exercise of its ordinary original civil jurisdiction under Clause 12 of the Letters Patent) had the power to execute a decree by selling immovable property situated wholly outside its territorial jurisdiction.
- Whether the appellants, holding over after the expiry of the original lease for a manufacturing purpose, could be terminated only by six months' notice expiring with the end of February in any year (i.e., whether Sections 106 and 116 of the Transfer of Property Act entitled them to such notice).
Arguments of the Parties
Appellants' Arguments
- The appellants (defendants) contended they were lessees protected by Section 116 of the Transfer of Property Act, and that because the lease served a manufacturing purpose Section 106/116 required six months' notice expiring with end of February in any year to terminate the holding-over tenancy.
- Counsel for the appellants argued that no Court may sell immovable property lying outside its territorial jurisdiction and that the Bombay High Court lacked power to execute the decree of sale; reliance was placed on Section 39 of the Civil Procedure Code and several authorities supposedly supporting that proposition.
- It was also argued that the word “order” in Section 2 of Act V of 1936 should not be taken to include orders in execution of decrees (i.e., execution orders), but only interlocutory or suit orders.
Respondent / Plaintiff's Position (as reflected in the opinion)
- The purchaser (respondent) relied on the decree and sale confirmed by the Bombay High Court and the receiver's notices; the Civil Judge found the Bombay High Court had jurisdiction and the sale conveyed good title to the purchaser.
- On the question of jurisdiction, the respondent's position (as adopted by the Court) was supported by established practice and authorities that (i) a Court which can entertain a mortgage suit may in execution deal with and sell mortgaged property even if part or all of it lies outside its territorial jurisdiction, and (ii) a decree and its execution (including appointment of a receiver and sale) are a continuation of the suit.
- On the lease point, the respondent relied on the contractual provision accepted by the parties (a clause permitting determination by three months' notice upon sale) and on the effect of holding over where the lessee continued on the same terms as the original lease — the Court held such an agreement governed the notice requirement.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Balkrishna v. Debi Prasad, A.I.R. (17) 1930 Oudh 305 | Cited by appellants to support the proposition that Courts cannot sell immovable property lying outside their territorial jurisdiction (instances where attachment is necessary). | The Court held that the cases relied upon by appellants did not establish a general bar; such authorities mainly stand for the limited rule that where attachment is necessary, sale can only be by the Court having local jurisdiction, and thus did not invalidate the sale in the present mortgage-execution context. |
| Sri Rajah Satrucherla Sivakanda Raju Bahadur Garu v. Rajah of Jeypore, A.I.R. (14) 1927 Mad. 627 | Cited by appellants in support of territorial-jurisdiction objections to sale. | The Court treated this among other authorities as not controlling for mortgage execution where attachment is not necessary; therefore it did not accept appellants' broad contention. |
| Sakti Nath Roy Choudhuri v. Registered Jessore United Bank Ltd., I.L.R. / A.I.R. (26) 1939 Cal. 403 | Authority indicating that in mortgage suits where attachment is not necessary the Court entertaining the suit may sell mortgaged property even if it lies outside its territorial jurisdiction. | The Court relied on this precedent as supporting the proposition that a Court which entertains a mortgage suit can, in execution, sell mortgaged property outside its jurisdiction; it weighed against the appellants' objection. |
| British India Steam Navigation Co. Ltd. v. A.M. Jiwanjee and Co., A.I.R. (23) 1936 Sind 11 | Cited by appellants among authorities on territorial limits of execution sales. | The Court considered it among the cases which did not establish the appellants' general proposition and thus did not invalidate the sale under the facts of this mortgage-execution case. |
| Ambika Ranjan Mujumdar v. Manikganj Loan Office Ltd., A.I.R. (16) 1929 Cal. 818 | Referenced by appellants concerning limits on Courts' power to sell immovable property outside jurisdiction. | The Court regarded it as part of the line of authorities that did not carry the broad proposition contended for and did not apply to this mortgage-execution situation. |
| Sreenath Chakravarti v. Priyanath Bandopadhya, A.I.R. (18) 1931 Cal. 312 | Referenced by appellants on territorial limitations for sale. | The Court treated it similarly to the other authorities cited by appellants and found it not determinative here. |
| Gokal Chand v. Kishori Lal, A.I.R. (29) 1942 Lah. 123 | Shows that in a mortgage suit a Court which can entertain the suit may sell mortgaged property lying outside its jurisdiction, when attachment is not necessary. | The Court cited it as authority supporting the power to sell mortgaged property outside territorial limits in the appropriate mortgage context and used it to reject the appellants' contention. |
| Khirod Chandra Ghosh v. Panchu Gopal Sadhukham, A.I.R. (26) 1939 Pat. 532 | Cited by appellants in the context of objections based on territorial jurisdiction for sale. | The Court concluded this case did not sustain the appellants' broad contention and treated it as part of the corpus of authorities on the point. |
| His Highness Shrimant Maharaj Yasvantrav HolKar v. Dadabhai Cursetji Ashburner, 14 Bom. 353 | Shows the Bombay High Court's historical approach of treating equitable mortgage suits relating to property outside its ordinary original civil jurisdiction as suits other than suits for land. | The Court cited this to explain that Bombay High Court practice long treated certain equitable mortgage suits as suits other than suits for land, and therefore could entertain them under Clause 12. |
| Kessowji Damodhar v. Khimji Jairam, 51 Bom. 551 (F.N.) | Illustrative of Bombay High Court practice regarding equitable mortgages and jurisdiction. | Referred to by the Court in describing the historical practice of the Bombay High Court in exercising jurisdiction over equitable mortgage suits. |
| Hatimbhai Hassanally v. Framroz Eduljee Dinshaw, A.I.R. (14) 1927 Bom. 278 F.B. | Another authority illustrating Bombay High Court practice on equitable mortgage jurisdiction. | The Court cited it for the same descriptive purpose concerning the High Court's approach to mortgage suits. |
| Alagappa Chetty v. S.A. Krishnaswami Iyer, A.I.R. (8) 1921 Mad. 119 | Demonstrates that a Court can appoint a receiver in respect of property outside its jurisdiction. | Used to support the proposition that Courts may in execution deal with property outside territorial limits by appointing receivers; the Court cited it in support of execution-appointments of receivers. |
| Promothanath Nalia v. H.V. Low and Co., A.I.R. (17) 1930 Cal. 502 | Authority for appointment of receiver over property outside territorial jurisdiction. | Relied upon by the Court as part of the body of authority validating receiverships and execution over out-of-jurisdiction property. |
| Jawala Prasad Bhartia v. Hanumanbux Poddar, 40 C.W.N. 1065 | Illustrates appointment of receivers beyond territorial confines. | Cited as part of the authorities showing English and Indian Courts have appointed receivers with extraterritorial effect; used by the Court to buttress its reasoning. |
| Sunder Singh Giyani v. Ganga Ram, A.I.R. (25) 1938 Lah. 93 | Another decision supporting appointment of receivers in respect of property outside territorial jurisdiction. | Included by the Court as confirming the principle that courts can appoint receivers for out-of-jurisdiction property. |
| Gangaram Tekchand Firm v. Dharamsi Jetha Co. Bombay, A.I.R. (22) 1935 Nag. 250 | Nagpur Full Bench held a suit for sale on mortgage is a suit for land and excluded from Bombay High Court’s ordinary original civil jurisdiction where mortgaged property lies outside its limits. | The Court explained that this decision prompted legislative intervention (Act V of 1936) and therefore its effect was displaced by Section 2 of that Act as explained in the opinion. |
| Murlidhar Shriniwas v. Gorakhram Sadhuram Firm, Bombay A.I.R. (23) 1936 Nag. 1 | Held the Bombay High Court had no jurisdiction to pass a decree on equitable mortgage when no part of the property lay within its jurisdiction. | The opinion notes this decision as part of the line of Nagpur decisions that led to legislative validation (Act V of 1936) which altered the legal position. |
| Thakur Prasad v. Fakirullah, 22 I.A. 44 | Judicial Committee observation that an execution proceeding is essentially a continuation of the suit. | The Court relied on the principle to conclude that if Clause 12 empowers the High Court to receive, try and determine suits, it follows that the Court also has jurisdiction to execute the decrees it passes. |
| Central Bank of India Ltd. v. Nusserwanji H. Bharucha, A.I.R. (19) 1932 Bom. 642 | Explains that, for the Bombay High Court, the machinery for executing decrees is provided by High Court rules rather than the Code of Civil Procedure. | The Court used this decision to note rule 581 and to stress that execution in mortgage cases in Bombay is carried out under High Court rules, reinforcing the validity of the sale procedure followed. |
| Murlidhar v. Messrs. Gorakhram Sadho Ram, A.I.R. (28) 1941 All. 358 | Held that Section 2 of Act V of 1936 declared decrees passed by Presidency High Courts and proceedings in execution of those decrees sacrosanct. | The Court cited this decision as supporting the proposition that Section 2 protects decrees and execution proceedings of Presidency High Courts; it strengthened the reasoning rejecting appellants' jurisdictional objection. |
| Dasarathi Kumar v. Sarat Chandra Ghose, A.I.R. (21) 1931/1934 Cal. 135 | Supports the view (relied upon by appellants) that where a tenant holds over, statutory notice provisions may apply (Calcutta view cited by appellants). | The Court noted this precedent but observed it conflicts with other authority (Avadh and Allahabad) and declined to follow it in the present facts, preferring the contrary line of decisions. |
| Khuda Bakhsh v. Abid Husain, 12 C.C. 279 (Pandit Sunder Lal J.C.) | Holds that a tenancy created by holding over is a tenancy on the same terms as the original tenancy, save that its duration changes (e.g., becomes month-to-month), and an express contract as to termination governs. | The Court relied on this reasoning to hold that where parties tacitly continued on original lease terms (subject to duration change), the contractual provision as to notice governed; therefore statutory six months' notice did not apply in the face of the contract clause. |
| Lalman v. Mt. Mullo, A.I.R. (12) 1925 Oudh 173 | Holds that when a new tenancy arises by holding over, the original lease terms govern the new tenancy in the absence of contrary terms. | The Court cited this to support the proposition that the hold-over tenancy continued on original terms and that a contractual provision dispensing with the statutory notice applied. |
| Badal v. Ram Bharosa, A.I.R. (25) 1938 All. 649 | Adopts a view similar to the Judicial Commissioner's Court that hold-over tenancies adopt original lease terms. | The Court cited it as follow-up authority consistent with Avadh/Allahabad decisions supporting the contract-governed approach to held-over tenancies. |
| Monmotha Nath Santra Madak v. Pearey Mohan Mukherjee, A.I.R. (6) 1919 Cal. 54 | Earlier Calcutta decision holding that where tenant holds over on terms of expired lease, tenancy may be determined by reasonable notice or by notice on terms of expired lease. | The Court noted this earlier Calcutta authority as conflicting with the later Calcutta decision relied upon by appellants and used it to show inconsistency in the Calcutta line. |
Court's Reasoning and Analysis
The Court addressed the two central issues sequentially.
On the jurisdiction question the Court began by examining Clause 12 of the Bombay High Court Letters Patent, which empowers the Court to receive, try and determine suits of every description subject to conditions for suits for land or immovable property. The Court observed that the Bombay High Court had historically treated suits to enforce equitable mortgages concerning property wholly outside its ordinary original civil jurisdiction as suits other than suits for land (citing Bombay decisions). Consequently, the appellants could not successfully argue that the Bombay High Court lacked jurisdiction to entertain the mortgage suit.
The Court then examined the authorities relied upon by the appellants and concluded they did not establish a general rule that a Court cannot sell out-of-jurisdiction immovable property. Rather, those cases mainly stand for the narrower proposition that where an attachment is necessary to effect a sale in execution, the sale must be effected by the Court having jurisdiction over the locality where the property lies. By contrast, in mortgage suits where attachment is unnecessary, it has been judicially recognized that a Court entertaining the suit can in execution sell mortgaged property lying outside its territorial jurisdiction (citing Gokal Chand and Sakti Nath Roy Chaudhury).
The Court reinforced the above with two broader legal propositions. First, execution is essentially a continuation of the suit (citing Thakur Prasad v. Fakirullah and general authorities), and therefore a tribunal having jurisdiction to pronounce judgment also has authority to award execution. Second, a Court can appoint a receiver in respect of property outside its jurisdiction (citing a series of cases), and appointment of a receiver is one recognised mode of executing a decree. Under these general considerations there was no principle in Indian law that generally forbade a Court from dealing in execution with property in relation to which it could pronounce judgment.
Crucially, the Court held that the matter was settled by statute: Act V of 1936 (the Decree and Orders Validating Act), Section 2 of which provides that decrees and orders passed by the Bombay High Court in exercise of its ordinary original civil jurisdiction shall not be questioned in any other Court on the ground that the High Court lacked jurisdiction. Section 3 validated proceedings adversely affected by decisions rendered after 26 August 1935 and provided for restoration of proceedings in specified circumstances. The Court rejected the appellants' narrower reading of the word “order” in Section 2 that would exclude execution orders: execution is a continuation of the suit and thus orders in execution fall within Section 2's protective scope.
The Court further noted (relying on Central Bank v. Nusserwanji H. Bharucha and the High Court rules) that sale in a mortgage execution in the Bombay High Court is effected under the High Court rules (e.g., rule 581) and not by the Code of Civil Procedure machinery; this reinforced the legitimacy of the sale process followed. The Court also found supportive the view in Murlidhar v. Gorakhram Sadho Ram that Section 2 of Act V of 1936 protects decrees and execution proceedings of Presidency High Courts.
On the lease/notice issue the Court recalled the facts: the receiver had power to lease for up to three years; he granted a one-year lease which, after expiry, was tacitly continued by the lessee who paid rent and by the widow by executing a general power of attorney. There was a letter (Ex. 1) from Jagannath Banka agreeing to continue the lease for three years on the same terms (with a modified rent), which the Court treated as evidencing an agreement to hold over on the terms of the original lease.
The Court analysed Sections 106 and 116 of the Transfer of Property Act. Section 116 provides that where a lessee remains in possession after lease determination and the lessor accepts rent, the lease is renewed year-to-year or month-to-month according to Section 106, “in the absence of an agreement to the contrary.” The appellants argued that this phrase required statutory notice (six months for manufacturing leases). The Court reviewed conflicting authorities: while a Calcutta decision (Dasarathi Kumar) supported the appellants' view, the Court preferred the Avadh and Allahabad line of authorities (e.g., Khuda Bakhsh, Lalman, Badal) holding that a tenancy created by holding over is on the same terms as the original lease, subject only to the change in duration, and an express contractual provision as to mode of determination governs.
Applying this to the present facts, the Court concluded that the parties had agreed that if the property were sold (privately or by decree), the lease could be determined by three months' notice; accordingly the notices issued by the receiver comported with the contractual arrangement and were valid despite the statutory scheme if viewed absent an agreement. Thus the appellants' second contention also failed.
Holding and Implications
HOLDING: The appeal is dismissed. The Court held (1) that the sale in favour of Seth Banarsidas Bhagwandas was not invalid for want of jurisdiction in the Bombay High Court to sell properties lying outside its ordinary original civil jurisdiction, and (2) that the notices given to terminate the hold-over tenancy were valid because the parties had agreed a contractual mode of determination (three months' notice on sale), so the statutory six months' rule did not apply in the circumstances.
Implications:
- The direct effect is that the purchaser's title under the Bombay High Court sale is upheld, and the ejectment decree against the defendants (appellants) stands; the appeal is dismissed with costs.
- The Court's decision applies established principles (execution as a continuation of the suit; appointment of receivers; the Bombay High Court's practice and the validating effect of Act V of 1936) to uphold execution sales and associated possession orders even when the mortgaged property lies outside the High Court's ordinary original local limits.
- The Court did not purport to lay down a novel general principle overriding earlier authority but relied on statute (Act V of 1936), existing High Court practice and precedent to resolve the conflict; the opinion does not state that it sets a new precedent beyond applying existing statutory and judicial authorities to the facts of this case.
Final disposition: The appeal is dismissed with costs.
1. This is a defendants' appeal in a suit for possession and damages. The material facts are as follows : Karaundia Industrial Development Co. Ltd., owned a flour mill and an ice factory situated at Aisbbagh, Lucknow. The company went into liquidation and the liquidators appointed by the Avadh Chief Court sold to two brothers. Rangnath Khemraj and Srini-vas Khemraj, the said mill and ice factory for & consideration of Rs. 7,61,000. Rangnath Khemraj and Srinivas Khemraj carried on business in Bombay under the firm name "Messrs. Khemraj. Srikishendas." The purchasers created an equitable mortgage over the said mill and factory in favour of the Central Bank of India Ltd., for a consideration of Rs. 4,50,000. The two brothers were adjudicated insolvent on 9th September 1930, and the property owned by them, including the said mill and the factory, vested in the official assignee. On 17th December 1930, the Central Bank of India Ltd., filed a suit in the High Court of Bombay (Original Side) to enforce their mortgage. The official assignee was made a party to this suit. During the pendency of the suit the High Court appointed Mr. H. C. Captain, the then Secretary of the Central Bank, receiver of the mortgaged property, with power either to work the mill or lease the same for a period not exceeding three years. The receiver was directed; to pay the profits or the rent to the mortgagee bank in part settlement of the claim. On 28th January 1931, a preliminary decree for sale was passed in favour of the said bank. This was followed by a decree absolute on 28th August 1931. The receiver Mr. H. C. Captain granted a lease of the mill and factory to one Devidut Sukhramdas for a period of one year (1st March 1931 to 28th February 1932), on a monthly rent of Rs. 5000. The terms of the lease provided that in case the demised premises were sold either by private sale, or in pursuance of a decree that may. be passed in the mortgage suit instituted by the bank, the lessor could determine the lease earlier by giving three months' notice to the lessee. Devidut Sukhramdas, who carried on business under the firm name "SukBramdas Devidut," had executed a power of attorney in favour of Lala Jaganath Bansidhar Banka who was managing the said mill on his behalf.
2. After the expiry of the period of one year, though no fresh lease was executed, the lessee continued in possession and paid the monthly rent till his death on 11th January 1942, Devidut Sukhramdas left his widow Mt. Manbhari alias Suitidevi as his sole hair. On 15th January 1942, Mt. Suitidevi executed a general power of attorney in favour of Lala Jagannath Banka who continued to manage the mill and the ice factory.
3. In execution of the decree passed in the mortgage suit under an order of the Bombay High Court (Original Side) the mill and the factory were sold and purchased by the respondent Seth Banarsidas Bhagwandas for a consideration of Rs. 8,03,000, on 17th April 1943. On 26th May 1943, under instructions from Mr. Captain the receiver, Ardesir Hormusji and Dinshaw & Co. Solicitors issued a notice to the firm Sukhramdas Devidut to vacate the premises and to give over possession of the properties sold to the purchaser Seth Banarsidas Bhagwandas by the end of August 1943. The sale in favour of Seth Banarsidas Bhagwandas was confirmed by the High Court of Bombay on 21st September .1943, and the receiver was directed to deliver possession to the purchaser forthwith. Possession, however, was not delivered to the purchaser, whereupon another notice was issued by Mr. Captain to the firm Sukhramdas Devidut and to Bai Manbhari, widow of Devidut Sukhramdas, calling upon them to forthwith vacate and hand over possession of the said mill and ice factory to Seth Banarsidas Bhagwandas. Having failed to obtain possession, Seth Banarsidas Bhagwandas instituted the suit, which has given rise to the present appeal, for ejectment, and damages amounting to Rs. 36.000. (1) Firm Sukhramdas Devidut; (2) Manbhari alias Suitidevi widow of Devidut Sukhramdas; and (3) Lala Jagannath Bansidher Banka were impleaded as defendants.
4. Defendants 1 and 2 put the plaintiff to proof of his title to the property in suit. They contended that they were the lessees of the property to whom Section 116, Transfer of Property Act was applicable, and as the lease was for manufacturing purposes, it could not be terminated except by a six months' notice, expiring with the end of February in any year. A plea was also raised to the effect that the Bombay High Court had no jurisdiction to sell the mill and consequently the plaintiff had acquired no title under the auction sale.
5. On an examination of the evidence led before him the learned Civil Judge of Malihabad held that the Bombay High Court had jurisdiction to sell the properties in question and that the plaintiff Seth Banarsidas Bhagwandas had acquired a good title to the same. He further held that a valid notice to quit had been served upon the defendants and that they were trespassers liable to ejectment. He held the plaintiff entitled to damages, but the amount of damages was left over to be determined at a subsequent stage. A decree for ejectment was accordingly passed. Dissatisfied with this decision the present appeal was preferred by Suitidevi and firm Sukhramdas Devidut.
6. Only two points were urged by the learned Counsel for the appellants at the hearing of the appeal : (1) That the Bombay High Court had no power to execute the decree passed by it in the mortgage suit instituted by the Central Bank of India Ltd., inasmuch as the entire property covered by the mortgage lay outside the jurisdiction of that Court, and (2) that the appellants who had held over after the expiry of the period of limitation of the original lease granted to Devidut Sukhramdas could not be ejected except by a six months' notice expiring with the end of February in any year.
7. As regards the first point, the learned Counsel for the appellant argued that no Court had a right to sell property which lies outside its territorial jurisdiction. He conceded that, there were certain exceptions to this general rule, but the present case, according to him, did not fall under any of these exceptions, Reliance in support of this contention was placed on Section 39, Civil P.C. which, it was argued, applied as much to the Bombay High Court in exercise of its ordinary original civil jurisdiction as to any other civil Court. The sale, according to him, was a nullity. Reference was made by the learned Counsel to, Balkrishna v. Debi Prasad A.I.R. (17) 1930 Oudh 305; Sri Rajah Satrucherla Sivakanda Raju Bahadur Garu v. Rajah of Jeypore A.I.R. (14) 1927 Mad. 627; Sakti Nath Roy Choudhuri v. Registered Jessore United Bank, Ltd. I.L.R. A.I.R. (26) 1939 Cal. 403; British India Steam Navigation Co. Ltd. v. A.M. Jiwanjee and Co. A.I.R. (23) 1936 Sind 11; Ambika Ranjan Mujumdar v. Manikganj Loan Office Ltd. A.I.R. (16) 1929 Cal. 818; Sreenath Chak-ravarti v. Priyanath Bandopadhya A.I.R. (18) 1931 Cal. 312; Gokal Chand v. Kishori Lal A.I.R. (29) 1942 Lah. 123 and Khirod Chandra Ghosh v. Panchu Gopal Sadhukham A.I.R. (26) 1939 Pat. 532.
8. In determining the question which arises for consideration we should not lose sight of the fact that the decree, in execution of which the sale was held, was passed by the Bombay High Court in exercise of its ordinary original civil jurisdiction. Under Clause 12 of the Letters Patent creating that Court, the Bombay High Court have jurisdiction to receive, try and determine suits of every description if, in the case of suits for land or other immovable property, such land or property be situated within the local limits of the ordinary original civil jurisdiction of that Court. The same clause confers upon that Court jurisdiction in all other cases (cases other than those for land or other immovable property) if the cause of action shall have arisen wholly or in part or (if the leave of the Court was obtained) if the defendant at the time of the commencement of the suit dwelt or carried on business within the local limits of the ordinary original civil jurisdiction of that Court. The Bombay High Court has always treated suits to enforce equitable mortgages relating to property which lay wholly outside its ordinary original civil jurisdiction as suits other than suits for land or other immovable property. (See His Highness Shrimant Maharaj Yasvantrav HolKar v. Dadabhai Cursetji Ashburner, 14 Bom. 353; Kessowji Damodhar v. Khimji Jairam 51 Bom. 551 (F.N.) and Hatimbhai Hassanally v. Framroz Eduljee Dinshaw A.I.R. (14) 1927 Bom. 278 F.B. In this state of' the authorities, the appellants' counsel could not argue that the Bombay High Court could not entertain the suit, but he maintained that it could not execute the decree passed by it as the entire property lay outside the jurisdiction of that Court.
9. The cases referred to by the learned Counsel do not establish the proposition contended for by him. They are cases in which it has been held that if an attachment is necessary in order to sell immovable property in execution of a decree, the sale can be effected only by the Court having jurisdiction over the local limits within which such property lies. But these cases further hold that in a mortgage suit-where no attachment is necessary-the Court which has Jurisdiction to entertain the suit (as some of the property affected lies within its jurisdiction) has also jurisdiction to sell the mortgaged property which lies outside its territorial jurisdiction. (See Gokal Chand v Kishori Lal A.I.R. (29) 1942 Lah. 123 and Sakti Nath Roy Chaudhury v. Jessore United Bank Ltd. A.I.R. (26) 1939 Cal. 403. If a Court can, in a mortgage suit, sell property which lies outside its territorial jurisdiction, if It had acquired jurisdiction to entertain the suit as some of the mortgaged property lay within its territorial jurisdiction, there is nothing in principle which should incline us to hold that in mortgage cases, a Court which can entertain a suit for any other reason cannot sell the property affected by the mortgage even if it lies outside its jurisdiction.
10. As a general proposition, says Freeman, any judicial tribunal having jurisdiction to pro-pounce a judgment has authority to award execution. Execution, as has often been held, is only a continuation of the suit. To our mind, there is nothing in the Indian law which, gene-rally speaking, forbids a Court from dealing in execution with property in relation to which it can pronounce judgment. A reference to the provisions of the Code of Civil Procedure will make it clear that of various modes in which a decree can be executed, one is by appointment of a receiver. And there is abundant authority for the proposition that a Court can appoint a receiver in respect of property which lies outside its jurisdiction. Alagappa Chetty v. S.A. Krishmswami Iyer A.I.R. (8) 1921 Mad. 119; Promothanath Nalia v. H.V. Low and Co. A.I.R. (17) 1930 Cal. 502; Jawala Prasad Bhartia v. Hanumanbux Poddar 40 C.W. N. 1065 and Sunder Singh Giyani v. Ganga Ram A.I.R. (25) 1938 Lah. 93. English Courts have appointed receivers in respect of property in Ireland, in West Indies, in India, in Canada, in China, in Italy, in America, in New South Wales, in Jersey, in Brazil and in Peru (See Kerr on Receivers 120-21). Thus, there can be no doubt that a Court which passes a decree can, in execution of the same, deal with property which lies outside its jurisdiction by appointment of a receiver. It has also been shown that, in cases where a Court entertains a mortgage suit, because part of the mortgaged property lies within its jurisdiction, it can in execution of the decree passed by it, sell mortgaged property which lies outside its jurisdiction. There is in our opinion no good reason to hold that a Court cannot do the same in cases where it acquires jurisdiction in a mortgage suit which relates to property wholly outside the local limits of its jurisdiction.
11. But apart from these general considerations we are of opinion that the matter is clinched by the provisions of Act V (the Decree and Orders Validating Act) of 1936. Section 2 of that Act provides as follows:
No decree passed or order made by the High Court of Judicature at Port William in Bengal, the High Court of Judicature at Madras, or the High Court of Judicature at Bombay in the exercise of its ordinary original civil jurisdiction under Clause 12 of Its Letters Patent, or by the High Court of Judicature at Rangoon, in exercise of its original civil jurisdiction under Clause 10 of its Letters Patent, shall be called in question in any proceedings before any other Court on the ground that the High Court passing the decree or making the order had no jurisdiction to pass or make the decree or order.
On 26th August 1935, a Full Bench of the Nagpur Judicial Commissioner's Court in Gangaram Tekchand Firm v. Dharamsi Jetha Co. Bombay A.I.R. (22) 1935 Nag. 250 took the view that a suit for sale on a mortgage could not be regarded as a suit in personam to recover a debt because the decree which is passed in such a suit directly affects the title to and disposition of the land mortgaged. Accordingly a suit on a mortgage is one for land and is, therefore, excluded from the cognizance of the Bombay High Court unless the mortgaged property is situated within the jurisdiction of that Court. The same Court again held in Murlidhar Shriniwas v. Gorakhram Sadhuram Firm, Bombay A.I.R. (23) 1936 Nag. 1 that the Bombay High Court had no jurisdiction to pass a decree on the basis of an equitable mortgage when no part of the property over which the decree is intended to operate is situated within the jurisdiction of the Court. It further held that the Bombay High Court had no jurisdiction to sell mortgaged property which lay outside its jurisdiction in execution of the decree passed. This view was against what has been held for a long time in the Bombay High Court in exercise of its ordinary original civil jurisdiction. A highly anomalous situation was thus created and the legislature had to intervene by passing Act V [5] of 1936, Section 2 whereof has already been reproduced. Section 3 of that Act provides that where in any proceedings concluded on or after 26th August 1935, any such decree or order has been found to be invalid on such ground (ground mentioned in Section 2) by any Court such finding shall be void and of no effect, and that Court shall, notwithstanding anything to the contrary in the Limitation Act, 1908, or any other law for the time being in force, on application made within six months from the commencement of this Act by any person prejudicially affected by such finding, restore the proceedings at and continue the proceedings from the stage reached immediately before the order embodying or based on such finding was made. The date mentioned in Section 3 (the 26th day of August 1935) is noteworthy. That is the date on which the decision in Ganga-ram Tekchand Firm v. Dharamsi Jetha Co., Bombay A.I.R. (22) 1935 Nag. 250 was pronounced.
12. It was contended by the learned Counsel for the appellants that the word "order" in the expression "no decree passed or order made by the High Court etc." in Section 2 does not refer to orders in execution of decrees but is confined to orders made in the suit. We-see no good ground to limit the word "order" as used in that section so as to exclude from its ambit orders passed in execution of decrees. Under Clause 12 of its Letters Patent the Bombay High Court is empowered, in the exercise of its ordinary original civil jurisdiction to receive, try and determine suits of every description provided certain conditions are fulfilled. It was pointed out by the Judicial Committee in Thakur Prasad v. Fakirullah 22 I.A. 44 an execution proceeding is essentially a continuation of the suit. If Clause 12, Letters Patent empowered the Bombay High Court to receive, try and determine suits, it necessarily follows that it has jurisdiction to execute the decrees passed by it. When Section 2 mentions decrees as well as orders and deals with them on the same footing, there is no reason to confine the word "order" to orders passed in the suit as distinct from execution proceedings. We 'are clear that this contention of the learned Counsel for the appellants is without substance) and must be rejected.
13. The whole of the argument advanced by the learned Counsel for the appellants on this part of the case was based on the provisions or the Code of Civil Procedure. It may be pointed out,' however, that as observed in Central Bank of India Ltd, v. Nusserwanji H. Bharucha A.I.R. (19) 1932 Bom. 642 at p. 644, so far as the High Court of Bombay is concerned, the machinery to carry out the decree which it might ultimately pass in exercise of its ordinary original civil jurisdiction is provided in the High court rules. rule 581 of the rules framed by that High Court lays down that the rules which provide for the sale of the property by the Commissioner are applicable to sales ordered by Court under mortgage decrees. It is, therefore, clear that when a Commissioner, in carrying out the decree passed in a mortgage suit proceeds to sell the property, he does not adopt the machinery of the Code of Civil Procedure, but does so under the rules framed by the High Court in that respect. We are strengthened in the view we take of the matter by the decision of Bajpai and Dar JJ. in Murlidhar v. Messrs. Gorakhram Sadho Ram A.I.R. (28) 1941 ALL. 358. The learned Judges held that Section 2 of Act V [5] of 1936 declared sacrosanct not only the decrees passed by a Presidency High Court in the exercise of its original civil jurisdiction but also the proceedings in execution of those decrees ordered by such High Courts. The appellants' learned Counsel challenged the correctness of this decision but the grounds on which he relied in support of his contention have already been examined by us and found to be without substance.
14. We hold accordingly that the sale in favour of Seth Banarsi Das Bhagwan Das was not bad for want of jurisdiction in the Bombay High Court to sell properties lying outside its jurisdiction.
15. The next point urged on behalf of the appellants was that inasmuch as the lessee held over after the expiration of the period of the lease, it being a lease for manufacturing purposes, could not be terminated except by a six months' notice expiring with the end of February in any year. In support of his contention the appellants' learned Counsel relied on the provisions of Sections 106 and 116, T. P. Act. It may be well to recall, at this stage the facts connected with the grant of the lease in question. After Rangnath Khemraj and Srinivas Khemraj were adjudicated insolvent in September 1930, the property owned by them, including that in question, vested in the official assignee. The Official Assignee was made a party to the suit brought by the Central Bank of India Ltd., to enforce their mortgage. Mr. H.O. Captain, Secretary of the Central Bank of India, was appointed receiver of the mortgaged property with power either to work the mill or lease the same for a period not exceeding three years. The receiver granted a lease of the mill and ice factory to Devidut Sukhramdas for a period of one year (1st March 1931, to 28th February 1932). After the expiry of one year, though no fresh lease was executed, the lessee remained in possession and continued to pay the monthly rent till his death in- January 1943. His heir and legal representative was his widow Mt. Suitidevi alias Bai Manbhari. Four days after her husband's death Mt. Suitidevi executed a general power of attorney in favour of Lala Jagannath Banka who continued to manage the mill and factory as before. There is on the record a letter Ex. 1 signed by Jagannath Banka to Mr. H.C. Captain, Receiver in suit No. 2720 of 1930. Para-graph l of this letter reads as follows:
We beg to note that we have agreed to continue the lease of the property formerly known as Lucknow Flour Mills and Iee Factory and now called Shri Venkateshwar Flour Mills situated in the industrial area at Aish Bagh in Lucknow for three years on the same terms and conditions as are contained in the Indenture of lease dated 24th March 1931, but except that the rent of the premises payable by us will be Rs. 3000 per month and we undertake to pay the said rent on the 10th day of each and every month punctually without any objection.
Objection was taken on behalf of the appellants to the admissibility of this document which ` 9 referred to in the list of documents as "copy of agreement dated 27th July 1942, executed by Jagannath Banka". Obviously this is a misdescription. It is not a lease, but only a letter confirming what appears to have been agreed to verbally. It is written on a stamped paper of Re. 1. Even if treated as a memorandum of agreement it is not inadmissible for insufficiency of stamp duty. It is clear therefore that the lessee held over on the terms of the original lease.
16. It was contended by Mr. Tandon on be half of the appellants, that in view of the provisions of Section 116, T. P. Act, the terms contained in the original lease, that the lessor could deter, mine it by giving three months notice to the lessee, could hot bind his clients. He was, Mr. Tandon argued, entitled under the law as a matter of right to six months notice under Section 106 read with Section 116, T. P. Act. Section 116 reads as follows:
If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in Section 106.
According to the argument of the learned Counsel the words "in the absence of an agreement to the contrary" occurring in the last portion of the section, refer not to the terms of the notice but to the existence of an agreement against holding over. In support of his contention the learned Counsel relied on Dasarathi Kumar v. Sarat Chandra Ghose A.I.R. (21) 1931 Cal. 135, That case no doubt supports the appellants' contention. But a contrary view has been taken in Oudh as well as in Allahabad. It was held by Pandit Sunder Lal J. C. in Khuda Bakhsh v. Abid. Husain 12 C.C. 279, that a tenancy created by holding over is a tenancy on the same terms as those on which the original tenancy was created subject to the modification that it will be from month to month or from year to year according to the purpose for which the land was let. In that case a house was let out to the defendant as a tenant under a sarkhat for a term of one year. He had agreed to vacate the premises as soon as the landlord desired him to do so. Notwithstanding the expiration of the term of one year, the defendant was allowed to remain in possession. The suit was contested on the ground among others that no legal notice for ejectment as required by the provisions of the Transfer of Property Act had been served on the defendant. Pandit Sunder Lal in disposing of the contention observed as follows:
Under Section 106, T. P. Act, a lease like this would be a lease from month to month terminable by 15 days' notice expiring with the end of the month of tenancy. The notice must be signed by or on behalf of the person giving it and delivered to the tenant or his authorised agent. But this is so only in the absence of a contract to the contrary. Now if the defendant held the land on the expiration of one year on the same terms as were embodied in the original lease with this variation that it was to be a monthly tenancy, the mode in which this tenancy could be terminated was the mode prescribed in the sarkhat of 10th October 1902. The provisions as to notice contained in Section 106, are inapplicable where there is an express contract as to the mode in which the tenancy is to be terminated. Now under the terms of this contract the defendant agreed to vacate the premises as soon as the landlord desired him to do so. His position was similar to that of a tenant at sufferance under the English law.
The learned Judicial Commissioner held that no notice to quit as required by 8/106, T. P. Act was necessary in such a case. All that was required by the contract was a communication on the part of the plaintiff of a desire that the defendant should vacate the premises.
17. This was followed in Lalman v. Mt. Mullo A.I.R. (12) 1925 Oudh 173 which laid down that if a new tenancy is created by reason of the landlord allowing the tenant to hold over after the original lease terminated, then in the absence of any terms in respect of the new tenancy, the terms governing the original lease will be deemed to have been accepted by the parties, and if there was a provision in the original tenancy dispensing with a notice to quit, the same applies with regard to the new tenancy.
18. These cases were followed in Badal v. Ram Bharosa A.I.R. (25) 1938 ALL. 649, where view similar to that taken by the Judicial Commissioner's Court was adopted.
19. With regard to the Calcutta decision on which reliance was placed by the learned Counsel for the appellants it is sufficient to say that it is in conflict with the view which has been taken in Avadh as well as in Allahabad. It is also in conflict with an earlier decision of Calcutta High Court in Monmotha Nath Santra Madak v. Pearey Mohan Mukherjee A.I.R. (6) 1919 Cal. 54. It was held by Sir Ernest Fletcher and Walmsley JJ. in that case that where a tenant for a term of years of homestead land situated in a town holds over on the terms of the expired lease the tenancy may be determined by reasonable notice or by a notice on the terms of the expired lease.
20. With the greatest respect we find it difficult to follow the reasoning of the decision in Dasarathi Kumar v. Sarat Chandra Ghose A.I.R. (21) 1934 Cal. 135. Under Section 116, in the absence of an agreement to the contrary, if a tenant remains in possession of the property leased to him after the determination of the period of the lease, and the lessor accepts the rent from him, the tenancy is renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 106. Referring to that section we find that a lease for agricultural or manufacturing purposes is deemed to be a leass from year to year terminable by six months notice expiring with the end of a year of the tenancy. This is, however, subject to any contract which the parties may enter into to the contrary. In the case before us the contract was that if the property leased was sold either by a private sale or in pursuance of a decree that might be passed in the mortgage suit instituted by the Bank, the lease could be determined by the lessor with three months' notice to the lessee. In view of such a contract as regards the notice required for determination of the lease, it cannot be successfully contended that the notices issued by Mr. Captain were not good and valid notices as required by the law. The second contention of the learned Counsel for the appellants must also, therefore, be rejected. We are of opinion that the Court below came to a correct conclusion.
21. The appeal fails and is dismissed with costs.
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