Shaikh Abdul Hadi Petitioner v. Mt. Kabultunnissa Opposite Party .

Das, J.:— It has been contended before us that the Subordinate Judge of Gaya had no jurisdiction to sell the property which was in Patna. It must be remembered that the decree which was being executed in the Gaya Court was a mortgage decree and that the mortgage comprised properties situated both in Gaya and Patna. In these circumstances the question arises whether the Subordinate Judge of Gaya had jurisdiction to sell the property in Patna. No doubt the provisions of S. 38 of the Code read with those of S. 39 indicate the acceptance of the view by the legislature that no Court can execute a decree in which the subject-matter of the suit or of the application for execution is property situated entirely outside the local limits of its jurisdiction. But as was pointed out by Mookerjee, J. in Begg Dunlop & Co. v. Jagannath Marwari(1). “In cases of decrees for sale of mortgaged properties an exception has been recognized”—See Maseyk v. Steel & Co.(2), Kartick Nath Pandey v. Tilukdhari Lall(3), Gopi Mohan Roy v. Doybaki Nundan Sen(4) Tincouri Debya v. Shib Chandra Pal Chowdhury(5), Latchman Pundey v. Maddan Mohun Shey(6) and Jahar v. Kamini Debi(7). Sir W. Comer Petheram in the case in Maseyk v. Steel & Co. clearly indicated the principle upon which the Court acts in cases of this nature. He pointed out that a mortgage-decree “is practically a decree for specific performance of the contract between the mortgagor and mortgagee” and where that is so” the authority given by Section 19 of the CPC must include the authority to make an order of this kind, that the property shall be sold, and to direct the mode in which the sale shall take place.” In my opinion, the authorities are conclusive on this point. It makes no difference that the property at Gaya had been sold at a previous execution case. The original authority remains and the Gaya Court could execute that authority by directing the sale of the Patna property.

2. It is also contended that the Gaya Court could not direct its peon to serve the sale processes in Patna. I can find no merit whatever in this argument.

3. The result is that the order passed by the learned Subordinate Judge must be affirmed and this appeal must be dismissed with costs.

4. Ross, J.:— I agree.

5. Appeal dismissed.