S.G. Sale, J.

1. This suit was brought by the plaintiff on his mortgages,dated respectively the 19th of August 1888 and the 14th of December 1888. Theproperties, the subject of suit, are all in Calcutta within the local limits ofthe jurisdiction of this Court. Those comprised in the first mortgage were alsocomprised in the second mortgage with other properties. These other propertieswere subsequently mortgaged to the defendant Pran Gobindo Shaw with furtherproperties out of Calcutta.

2. By the decree it was referred to the Registrar to take anaccount in respect of each of the three mortgages, and failing redemption itwas ordered that the properties comprised in the first and second mortgagesshould be sold, and the proceeds mar(sic)halled and applied so that the thirdmortgagee should have the full benefit of any surplus of the sale-proceeds ofsuch of the properties comprised in his mortgage as were also comprised in thesecond mortgage, such properties being all in Calcutta. [192] The Registrarmade his report. Then after the time allowed for redemption, the propertiescomprised in the first and second mortgages were sold under a final order forsale and the proceeds applied as directed by the decree, with the result thatthe first and second mortgages were satisfied, and a substantial payment wasmade towards satisfaction of the third mortgage. For realization of the balancedue to the third mortgagee he now applies for sale of the unsold propertiescomprised in his mortgage-being properties out of Calcutta. He claims the rightto proceed against these properties in this suit under the liberty reserved bythe decree as follows: "And this Court doth hereby reserve theconsideration of all further directions until the Registrar shall have made hisreport, and doth also reserve liberty to the defendant Pran Gobindo Shaw toproceed against the properties situated outside the town of Calcutta."

3. It is on every account desirable that the third mortgageeshould also obtain full relief in this suit. He was, under Section 85 of theTransfer of Property Act, made a defendant because some of the propertiescomprised in his mortgage were also comprised in a former mortgage in favour ofthe plaintiff. His mortgage was thus included in the subject of suit, and adecree was made in respect of all the mortgages. The Court therefore had, andhas exercised, jurisdiction with respect to the third mortgage. The onlyquestion is whether it is restrained from dealing with the remaining propertiescomprised therein and which are situated outside the local limits of thejurisdiction of this Court, because prior leave to sue in respect thereof hasnot been obtained under clause 12 of the Letters Patent.

4. This clause vests the Court with jurisdiction to dealwith suits for land where the land is situate either wholly or partly withinand partly without the local limits of its Ordinary Original CivilJurisdiction, but in the latter case the exercise of its jurisdiction is madedependent upon prior leave to sue having been obtained; see Kellie v. FraserI.L.R. 2 Cal. 445 [LQ/CalHC/1967/116] . But words restrictive of the exercise by the Court of itsjurisdiction must he construed strictly.

5. The restrictive words of the Charter apply to the case ofa [193] plaintiff, but there is no similar restraining provision applicable toa case where the person seeking the exercise of the Courts jurisdiction is thedefendant.

6. In the absence of any such restriction, I think I oughtto make the order as prayed.

7. Attorneys for the second mortgagee: Messrs. N. N. Sen& Co.

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Kissory Mohun Roy vs.Kali Churn Ghose and Ors. (04.01.1897 -CALHC)