JUDGMENT
The following preliminary issue has been framed in this case:—Has the Court jurisdiction to try this suit? This is a suit in which the plaintiff prays inter alia that certain lands, the title-deeds relating to which were deposited with him by the defendants, may be sold and the proceeds applied to the payment of the debt due to him by them. It is admitted that all the lands are situated outside the original jurisdiction of this Court, and the question that is raised in the preliminary issue is as to whether a suit framed for a decree for sale of certain lands mortgaged to the plaintiff by the defendants is a suit for land or other immoveable property within the meaning attached to those words in clause 12 of the Letters Patent. In clause 12 the phrase used is “suits for land or other immoveable property” and identically the same words are used in the first Civil Procedure Code (Vide section 5 of Act Till of 1859). In the present Civil Procedure Code this expression has been greatly elaborated and it runs now (section 16, Act XIV of 1882) as follows: “Suits—
(a) for the recovery of immoveable property,
(b) for the partition of immoveable property.
(c) for the foreclosure or redemption of a mortgage of immoveable property,
(d) for the determination of any other right to or interest in immoveable property,
(e) for compensation for wrong to immoveable property,
(f) for the recovery of moveable property actually under distraint or attachment.”
The question it appears to me that really arises in this case is whether the phrase “suit for land or other immoveable property” can be held to include all or, if not all, “any and if so which of the above mentioned suits. This question has never, as far as I can ascertain, been decided by the Madras High Court. A question similar to, but not identical with, that now under consideration arose in the case of Nagamoney Mudalliar v. Janakiram Mudalliar but it was not decided. That was a suit for the redemption of a mortgage. The point that came before the High Court was whether, where permission to institute such a suit has been granted by the Registrar, it was open to the Judge before whom the suit came for trial to entertain the objection that the order granting permission was illegal. The Judges on appeal held that it was open to the Judge to consider the legality or otherwise of the order, and the case was accordingly sent back to him with a view to this being done. I have ascertained, however, that eventually the silt was withdrawn and that the question at issue as to jurisdiction was not decided. In Seshagiri Rau v. Rama Rau the question that arose was whether a suit for partition of family property was a suit for land within the meaning of clause 12 of the Letters Patent. The High Court held that such a suit was a suit ‘for land or other immoveable property and that the High Court, had,’ therefore, no jurisdiction to try the suit as the land was situated wholly outside the limits of their local jurisdiction. These appear to be the only Madras cases hearing on the question now at issue. There are, however, two decisions of the other High Courts which are directly on the point now under consideration. They are those of Venkoba Balshet Kasar v. Rambhaji Valad Arjun and In the matter of the petition of S.J Leslie . In Venkoba Balshet Kasar v. Rambhaji Valad Arjun the question was whether a suit for the recovery of a mortgage debt by the sale of the mortgaged property was a suit for land within the meaning of section 5 of the Code of Civil Procedure then in force, i.e, Act VIII of 1859. The High Court held as follows “We think that this is not a suit for land within the meaning of section 5 of Act VIII of 1859. Comparing that section with sections 223 and 224 of the Code, we think that a suit for land is a suit which asks for delivery of the land to the plaintiff.” A diametrically different decision was arrived at by the Bengal High Court in the decision in In the matter of the petition of S.J Leslie. That also was a suit brought upon a mortgage praying for a decree for the amount due thereunder, and that in default of payment the land mortgaged might be sold. It came before a Bench in appeal, and the Judges, Mark by and Ainslie, JJ., held that the suit was a suit for land in his judgment Markby, J., observes as follows: “I think that the plaint so far as it asks for a sale of the mortgaged property in satisfaction of the mortgaged debt, is a “suit for land” within the meaning of section-5 of the Code of (Civil Procedure (Act VIII of 1859) which regulates the jurisdiction in this case. Mr. Branson contended that these words should be read as signifying those suits alone in which the land itself is sought directly to be recovered. It was admitted that a much wider construction had been put by Macpherson, J., upon the similar words of the charter of the High Court; that learned Judge holding that a suit for foreclosure by the mortgagee was, as such a suit for land, in Bibce Janu v. Mursa Mahommed Hadee and that a suit for redemption was so also, in Sreemuthy Lalmoney Dassee v. Juddornath Shane, but it was contended that these decisions were not correct. We see no reason to suppose this. They have never been questioned as far as we are aware. On the contrary, the uniform practice of this court on its original side has been in accordance with them. They are also supported by the decision in Suruan Hassein v. Shahazadah Gulam Mahomed where it was held that a suit brought to enforce a security against land was a suit for the recovery of an interest in immoveable property within the meaning of clause 12 of section 1 of Act XIV of 1859. Upon the authority of these decisions, I hold that a suit for land includes any suit in which a decree is asked for operating directly upon the land, and therefore includes any suit brought to enforce a security upon land.” I am of opinion that this last decision In the matter of the petition of Leslie is correct and should be followed. I would indeed be prepared to go further and to hold that the phrase “suit for land or other immoveable property” as used in clause 12 of the Letters Paten includes all suits mentioned in clauses (a), (b), (c), (d), (e) and (f) in section 16 of the present. Code of Civil Procedure. That section appears to me in fact to be simply an amplification with details of the old section of the Act of 1859, on which the clause in the Letters Patent was, it appears, based. I consequently hold that this is a suit for laid lying wholly outside the ordinary original jurisdiction of the High Court and consequently decide the preliminary issue in the negative. It follows that this suit must he dismissed with coats (2 sets).
Attorney for sixth defendant— Mr. A.E Rencontre