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2001 DIGILAW 78 (DEL)

D. K. BHARGAVA v. MAYA DEVI

2001-01-23

SHARDA AGGARWAL

body2001
Sharda Aggarwal ( 1 ) THE present suit has been filed by the Plaintiff for recovery of Rs. 7 lacs with interest pendilite and future interest under Order XXXIV Code of Civil Procedure (for short Civil Procedure Code) by way of sale of mortgaged property. The Defendants 4,5,6 and 7 have raised a preliminary objection by way of moving the present application stating that this Court has no jurisdiction to entertain the present suit, as the property alleged to be mortgaged in favour of the Plaintiff is situated in Mathura, Uttar Pradesh. ( 2 ) THE contention of learned counsel for the Defendants is that in a suit for recovery by way of sale of mortgaged property the provisions of Section 16 (c) Civil Procedure Code are applicable and the suit can only be instituted in the Court within the local limits of whose jurisdiction the property in suit is situated. It is contended that in a case which is covered by Section 16 (c) Civil Procedure Code, Section 20 Civil Procedure Code cannot be called in aid. Section 20 Civil Procedure Code is specifically stated to be subject to the limitations laid down in Sections 16 to 19 Civil Procedure Code. Reliance is placed on Mrs. Rosy Joseph and Ors. v. Union Bank of India, AIR 1978 Kerala 209, where a similar question had arisen and it was held that a suit to recover money by sale of mortgaged property could only be instituted in the Court within the local limits of whose jurisdiction the mortgage property was situated. ( 3 ) LEARNED counsel for the Plaintiff admits that the property in suit is situated in Mathura, Uttar Pradesh, however, reliance is placed by him on the proviso to Section 16 (c) Civil Procedure Code claiming that relief sought by the Plaintiff can be entirely obtained through the personal obedience of the Defendants. ( 4 ) THE Defendants in this case are admittedly the sons and daughters of one Smt. Bhagwan Devi who had allegedly taken a loan from the Plaintiff by allegedly mortgaging 0her property at Mathura, Uttar Pradesh by way of security. Defendants No. 1 and 3 to 6 are residents of Bombay where as Defendants 7 and 8 residents of Mathura, Uttar Pradesh and Defendants 2 and 9 are residing in Delhi. Defendants No. 1 and 3 to 6 are residents of Bombay where as Defendants 7 and 8 residents of Mathura, Uttar Pradesh and Defendants 2 and 9 are residing in Delhi. ( 5 ) THE short question to be decided is as to whether the suit filed by the Plaintiff squarely falls under Section 16 (c) of the Civil Procedure Code or aid can be called for from Section 20 of the v. A perusal of Section 20 of the v shows that it permits suits to be instituted in Courts within the local limits of whose jurisdiction the Defendant actually and voluntarily resides or carries on business or personally works for gain or the cause of action wholly or in part arises but the provisions of the Section are expressly stated to be subject to the limitations laid down in Sections 16 to 19 of the Civil Procedure Code. According to Section 16 (c) of Civil Procedure Code, a suit for foreclosure, sale or redemption in the case. of a mortgage or charge upon immovable property can be instituted in the Court within the local limits of whose jurisdiction the property in suit is situated. The only exception is with respect to cases covered by the proviso to the said Section. The proviso covers only suits to obtain compensation for wrong to immovable property or other relief in respect of immovable property where the relief sought can be entirely obtained through the personal obedience of the Defendant. ( 6 ) IN this case, the property situated at Mathura, Uttar Pradesh is alleged to be mortgaged and the Plaintiff claims recovery of Rs. 7 lacs by sale of the said property. This suit does not fall within the scope of the proviso to Section 16 Civil Procedure Code. The suit could have been instituted in the Court within the local limits of whose jurisdiction the immovable property forming the subject matter of the mortgage was situated. Reading of the provisions of Section 20 and Section 16 (c) Civil Procedure Code and applying the same to the allegations in the plaint the conclusion is that the suit is governed by Section 16 (c) Civil Procedure Code and the Courts at Mathura, Uttar Pradesh where the properly alleged to be mortgaged is situated, alone, have the jurisdiction to entertain the present suit. Mrs. Mrs. Rosy Joseph s case (supra) relied by the Defendants fully applies to the facts of this case. Hence, this Court has no jurisdiction to entertain this suit. ( 7 ) THE Plaint along with the original documents is, accordingly, ordered to be returned to the Plaintiff for presentation to the proper Court. However, the Plaintiff will be at liberty to present the plaint before the appropriate court within a period of 10 days from the date of return of the plaint.