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Indian CasesSupreme Court of India

M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors on 4 February, 1969

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Supreme Court of India

M. L. Abdul Jabhar Sahib vs H. V. Venkata Sastri & Sons & Ors on 4 February, 1969

Equivalent citations: 1969 AIR 1147, 1969 SCR (3) 513

Author: R Bachawat

Bench: Bachawat, R.S.

           PETITIONER:
M. L. ABDUL JABHAR SAHIB

	Vs.

RESPONDENT:
H. V. VENKATA SASTRI & SONS & ORS.

DATE OF JUDGMENT:
04/02/1969

BENCH:
BACHAWAT, R.S.
BENCH:
BACHAWAT, R.S.
SIKRI, S.M.
HEGDE, K.S.

CITATION:
 1969 AIR 1147		  1969 SCR  (3) 513
 1969 SCC  (1) 573
 CITATOR INFO :
 F	    1990 SC1888	 (2)


ACT:
Transfer  of Property Act, 1882 (Act 4 of 1882), ss. 3,	 59,
73(1) and 100-Security bond charging properties for  payment
of  Rs.	 50,000 executed to satisfy condition for  leave  to
defend	suit  under  O. 7 Madras High  Court  Original	Side
Rules-S.  59 of the T. P.  Act whether attracted  to  charge
under s. 100-Requirements of valid attestation-Security bond
did not require attestation but required registration  under
s.  17(1)(b)  of Registration Act, 1908 (Act  16  of  1908)-
Decree	of court mentioning that charge created by  security
bond  enured for benefit of decree holder-Effect of  decree-
Rateable distribution when permissible-Jurisdiction of	High
Court-Property	 situate   outside   limits   of    original
jurisdiction   under   Letters	 Patent-Objection   as	  to
jurisdiction  whether  could be raised in  circumstances  of
case.



HEADNOTE:
The  appellant	filed  suit No. 56 of  1953  against  H	 for
recovery of certain monies on the basis of promissory notes.
As the suit was under 0. 7 of the Madras High Court Original
Side  Rules  H was given leave to defend  it  on  furnishing
certain	 security.  Accordingly H executed in favour of	 the
Registrar,  Madras  High  Court, a  security  bond  charging
certain	 properties  'for the payment of Rs.  50,000,.	 The
document  was attested by only one witness.  At the time  of
registration it was signed by two identifying witnesses	 and
the Sub-Registrar.  The trial Judge decreed the	 appellant's
suit and the decree mentioned that the charge created by H's
security  bond	would enure for the benefit  of	 the  decree
holder.	 In execution proceedings the properties in question
were  sold  and the proceeds deposited in  court.   At	this
stage  the  three respondents who also	held  money  decrees
against	 H applied to the Court for ratable distribution  of
the  assets  realised in the execution	of  the	 appellant's
decree	in suit No. 56 of 1953.	 The trial  Judge  dismissed
their  applications.   In Letters Patent  Appeals  the	High
Court  held  that in the absence of attestation by  the	 two
witnesses  the	security  bond executed	 by  H	was  invalid
inasmuch as a charge on property created under s. 100 of the
Transfer of Property Act attracted the provisions of s.	 59.
As  to	the decree passed in suit No,. 56 of 1953  the	High
Court  held that in view of the decree holder's omission  to
amend  the plaint by adding a prayer for enforcement of	 the
charge the decree should be construed as containing merely a
recital of the fact that a security bond had been  executed.
On  these findings the High Court held that the	 respondents
were  entitled to rateable distribution.  Against  the	High
Court's	 orders the appellant filed appeals in	this  Court.
On  the question of attestation he contended that  the	sub-
Registrar  and	the two identifying witnesses must  also  be
treated as having attested the security bond.
HELD  : (i) The essential conditions of a valid	 attestation
under s. 3 of the Transfer of Property Act are : (1) two  or
more  witnesses have seen the executant sign the  instrument
or  have received from him a personal acknowledgment of	 his
signature;  (2) with a view to attest or to hear witness  to
this  fact  each of them has signed 'the instrument  in	 the
presence of the executant.  It is essential that the witness
should have put his signature animo attestendi, that is, for
the purpose of attesting that he has seen the executant sign
or-has	received from him a personal acknowledgment  of	 his
signature.  If a person puts his signature on the docu-
514
meat  for some other purpose, e.g., to certify that he is  a
scribe or an identifier or a registering officer, he is	 not
an attesting witness. [519 C-D]
Prima  facie the registering officer puts his  signature  on
the document in discharge of his statutory duty under s.  59
of the Registration Act and not for the purpose of attesting
it  or certifying that he has received from the executant  a
personal acknowledgment of his signature.- [520 B-C]
In  the	 present  case the evidence did not  show  that	 the
registering officer and the identifying witnesses signed the
document  with	the intention of attesting it.	Nor  was  it
shown that the registering officer signed it in the presence
of the executant.  The document could not therefore be	said
to have been attested by these witnesses and must be held to
have been signed by one attesting witness only. [520 D]
Veerappa  Chettiar v. Subramania, I.L.R. 52 Mad. 123,  Girja
Datt  v.  Gangotri, A.I.R. 1955 S.C.  346,  Abinash  Chandra
Bidyanidhi  Bhattacharya  v. Dasarath Malo, I.L.R.  56	Cal.
598,  Shiam Sundar Singh v. Jagannath Singh, 54	 M.L.J,.  43
and Surendra Bahadur Singh v. Thakur Behari Singh, 1939	 (2)
M.L.J. 762, referred to.
(ii)Section  100 of the Transfer of Property Act  does	not
attract the provisions of s. 59. [521 C-D]
The  first paragraph of s. 100 consists of two	parts.	 The
first part concerns the creation of a charge over  immovable
property  which may be by act of parties or by operation  of
law.  No restriction is put on the manner in which a  charge
can be made. [521 C]
When  such a charge has been created the second	 part  comes
into play.  It provides that all the provisions hereinbefore
contained which apply to a simple mortgage shall, so far  as
may  be,  apply to such charge.	 The second  part  does	 not
address itself to the question of creation of a charge.	  It
does  not  attract the provisions of S. 59 relating  to	 the
creation  of a mortgage.  The second part moreover makes  no
distinction between a charge created by act of parties and a
charge	by operation of law.  Obviously the provision of  s.
59  are	 not  attracted to a charge  by	 operation  of	law.
Likewise  the legislature could not have intended  that	 the
second	part  would  attract the provisions of s.  59  to  a
charge created by act of parties. [521 D-E]
If  a charge can be made by a registered instrument only  in
accordance with s. 59, the subsequent transferee will always
have  notice of the charge in view of s. 3 of the Act.	 But
the basic assumption of the doctrine of notice enunciated in
the  second  paragraph is that there may be cases  when	 the
subsequent  transferee	may not have notice of	the  charge.
The plain implication of this paragraph is that A charge can
be made without any writing. [521 F-G]
If  a  non-testamentary instrument creates a charge  of	 the
value  of  Rs.	100/-  or  upwards  the	 document  must	  be
registered  under  s. 17(1) (b) of the	Indian	Registration
Act, 1908.  But there is no provision of law which  requires
that  an instrument creating the charge must be attested  by
witnesses. [521 G-H]
The  object of the second part of the first paragraph of  s.
100  is to make it clear that the rights and liabilities  of
the  parties in case of a charge shall so far as may be	 the
same  as  the  rights and liabilities of the  parties  of  a
simple	mortgage.   It	was not intended  to  prescribe	 any
particular mode for the creation of a charge. [522 B]
515
It  followed that the security bond in the present case	 was
not  required  to  be attested by witnesses.   It  was	duly
registered and was valid and operative. [522 C]
Viswanadhan  v. Menon, I.L.R. [1939] Mad. 199 and Shiva	 Rao
v. Shanmugasundaraswami I.L.R. [1940] Mad. 306, disapproved.
Baburao v. Narayan, I.L.R. 1949 Nag. 802, 819-822, approved.
(iii)The  decree  in suit No. 56 of 1963  on  its  true
construction  declared	that  the security  bond  created  a
charge	over the properties in favour of the plaintiffs	 for
payment of the decretal amount and gave them the liberty  to
apply  for sale of the properties for the discharge  of	 the
encumbrance.   Pursuant	 to the decree the  properties	were
sold and the assets were held by the court.  The omission to
ask for an amendment of the plaint was an irregularity,	 but
that did not affect the construction of the decree. [522  D-
E]
(iv)The immovable properties had been sold in execution	 of
a decree ordering sale for the discharge of the	 encumbrance
thereon	 in favour of the appellant.  Section 73(1)  proviso
(c)  therefore	applied and the proceeds of the	 sale  after
defraying  the expenses of the sale must be applied  in	 the
first  instance	 in  discharging  the  amount  due  to	 the
appellant.   Only  the balance left after  discharging	this
amount could be distributed among the respondents. [523 B]
(v)Since   the	respondents'  own  case	 rested	  on   the
assumption that the properties were lawfully sold they could
not  be allowed to raise the objection that the	 High  Court
had  no	 territorial  jurisdiction for	sale  of  properties
outside	  the	local  limits  of  its	 ordinary   original
jurisdiction. [522 G]
Seth  Hiralal Patni v. Sri Kali Nath, [1962] 2	S.C.R.	747,
751-52, Bahrein Petrolium Co. Ltd. v. P. J. Pappu, [1966]  1
S.C.R. 461, 462-63 and Zamindar of Etiyapuram v. Chidambaram
Chetty, I.L.R. .43 Mad . 675 (F.B.), referred to.



JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 272 to 274 of 1966.

Appeals by special leave from the judgment and order dated July 28, 1961 of the Madras High Court in O.S.A. Nos. 65, 70 and 71 of 1956.

K.N. Balasubramaniam and R. Thiagarajan, for the appel- lant (in all the appeals).

R.Gapalakrishnan, for respondents Nos. 2 to 4 (in C.A. No. 272 of 1966), respondents Nos. 1 and 2 (in C.A. No. 273 of 1966) and respondent No. 1 (in C.A. No. 274 of 1966). The Judgment of the Court was delivered by Bachawat, J. On February 23, 1953 the appellant instituted C.S. No. 56 of 1953 on the Original Side of the Madras High Court under the summary procedure of Order 7 of the Original Side Rules against Hajee Ahmed Batcha claiming a decree for Rs. 40,556/1/2/- and Rs. 8,327/12/9/- said to be due under two I promissory notes executed by Haji Ahmed Batcha. On March 9 1953, Hajee Ahmed Batcha obtained leave to defend the suit on condition of his furnishing the security for a sum of Rs. 50,000 to the satisfaction of the Registrar of the High Court. On March 26, 1953 Hajee Ahmed Batcha executed a security bond in favour of the Registrar of the Madras High Court charging several immoveable properties for payment of Rs. 50,000. The condition of the bond was that if he paid to the appellant the amount of any decree that might be passed in the aforesaid suit the bond would be void and of no effect and that otherwise it would remain in full force. The bond was attested by B. Somnath Rao. It was also signed by K. S. Narayana Iyer, Advocate, who explained the document to Hajee Ahmed Batcha and identified him. All the properties charged by the bond are outside the local limits of ‘the ordinary original jurisdiction of the Madras High Court. The document was presented for registration on March 29, 1.953 and was registered by D. W. Kittoo, the Sub- Registrar of Madras-Chingleput District. Before the Sub- Registrar, Hajee Ahmed Batcha admitted execution of the document and was identified by Senkaranarayan, and Kaki Abdul Aziz. The identifying witnesses as also the Sub- Registrar signed the document. Hajee Ahmed Batcha died on February 14, 1954 and his legal representatives were substituted in his place in C.S. No. 56 of 1953. On March 19, 1954 Ramaswami, J. passed a decree for Rs. 49,891/13/- with interest and costs and directed payment of the decretal amount on or before April 20, 1954. While passing the decree, he observed :-“It is stated that the defendant has executed a security bond in respect of their immoveable properties when they obtained leave to defend and this will stand enured to the benefit of the decree-holder as a charge for the decree amount.”.

Clauses 3 and 4 of the formal decree provided “(3) that the security bond executed in respect of their immoveable properties by defendants 2 to 4 in pursuance of the order dated 9th March 1953 in application No. 797 of 1953 shall stand enured to the benefit of the plaintiff as a charge for the a amounts mentioned in clause 1 supra;

(4).that in default of defendants 2 to 4 paying the amount mentioned in clause 1 supra on or before the date mentioned in, clause 2 supra the plaintiff shall be at liberty to apply for the appointment of Commissioners for, sale of the aforesaid properties.”

The appellant filed an application for (a) making absolute the charge decree dated March 31, 1954 and directing sale of the properties; and (b) appointment of Commissioners for selling them. On April 23, 1954 the Court allowed- the application, appointed Commissioners for selling of the properties and directed that the relevant title deeds and security bond be handed over 5 17 to the Commissioners. The Commissioners sold the properties on May 29 and 30, 1954. The sales were confirmed and the sale proceeds were deposited in Court on July 2, 1954. All the three respondents are simple money creditors of Hajee Ahmed Batcha. The respondents Venkata Sastri & Sons filed O.S. No’ 13 of 1953 in the Sub-Court, Vellore, and obtained a decree for Rs. 5,500 on March 27, 1953. Respondent H.R. Cowramma instituted O.S. No. 14 of 1953 in the same Court and obtained a money decree on April 14, 1953. The two decree-holders filed applications for execution of their respective decrees. One Rama Sastri predecessors of respondents H.R. Chidambara Sastri and H.R. Gopal Krishna Sastri obtained a money decree against Hajee Ahmed Batcha in O.S. No. 364 of 1951/52 in the Court of the District Munsiff, Shimoga, got the decree transferred for execution through the Court of the District Munsiff, Vellore, and filed an application for execution in that Court. On June 7, 1954 the aforesaid respondents filed applications in the Madras High Court for (i) transfer of their execution petitions pending in the Vellore courts to the file of the High Court and (ii) an order for rateable distribution of the assets realized in execution of the decree passed in favour of the appellant in C.S. No. 56 of 1953. The appellant opposed the applications and contended that as the properties were charged for the payment of his decretal amount, the sale proceeds were not available for rateable distributing amongst simple money creditors. The respondents contended that the security bond was invalid as it was not attested by two witnesses and that the decree passed in C.S. No. 56 of 1953 did not create any charge. Balakrishna Ayyar, J. dismissed all the applications as also exemption petitions filed by the respondents. He held that the decree in C.S. No. 56 of 1953 did not create a charge on the properties. But following the decision in Veerappa Chettiar v. Subramania(1) he held that the security bond was sufficiently attested by the Sub-Registrar and the identi- fying-witnesses. The respondents filed appeals against the orders. On March 28, 1958 the Divisional Bench hearing the appeals referred to a Full Bench the following question “Whether the decision in Veerappa Chettiar v. Subramania lyer (I.L.R. 52 Mad. 123) requires reconsideration.”

The Full Bench held “In our opinion, such signatures of the registering officer and the identifying witnesses endorsed on a mortgage document can be treated as those of attesting witnesses if’ (1) the signatories are those who have seen the execution or received a personal acknowledgment (1) I.L.R. 52 Mad. 123.

from the executant of his having executed the document, (2) they sign their names in- the presence of the executant and (3) while,so doing they had the animus to attest. The mere presence of the signatures of the registering officer or the identifying witnesses on the registration endorsements would not by themselves be sufficient to satisfy the requirements of a Valid attestation; but it would be competent for the parties to show by evidence that any or all of these persons did in fact intend to and did sign as attesting witness as well.”

The Full Bench held that the decision in Veerappa Chettiar’s Case(1) can be held to, be correct to this limited extent only and not otherwise. At the final hearing of the appeals, the Divisional Bench held that ( 1 ) a charge by act of parties could be created only by a document registered and attested by two witnesses; (2) the security bond was not attested by two witnesses and was therefore invalid; (3) the decree in C.S. No. 56 of 1953 should be construed as containing nothing more than a recital of the fact of there having been a security bond in favour of the plaintiff; and the sale in execution of the decree must be regarded as a sale in execution of a money decree; and (4) tie respondents were entitled to an order for rateable distribution. Accordingly, the Divisional Banch allowed the appeals, directed attachment of the sale proceeds and declared that the respondents were entitled to rateable distribution along with the appellant. The present appeals have been filed after obtaining special leave from this Court.

The following questions arise in these appeals : (1) Is the security bond attested by two witnesses; (2) if not, is it invalid? (3) does the decree in C.S. No. 56 of 1953 direct sale,of the properties for the discharge of a charge- thereon, and (4) are the respondents entitled to rateable distribution of the assets held by court.? As to the first question, it is not the case of the appellant that K.S. Narayana Iyer is an attesting witness. The contention is that the Sub-Registrar D.W. Kittoo and the identifying witnesses Senkaranarayana and Kaki Abdul Aziz attested the document. In our opinion, the High Court rightly rejected this contention.

Section 3 of the Transfer of Property Act gives the definition of the word “attested” and is in these words :-

“Attested”, in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the (1) I.L.R. 52 Mad. 123.

direction of the executant, or has received from the executant a personal acknowledgment of his- signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary.”

It is to be noticed that the word “attested”, the thing to be defined,. occurs as part of the definition itself. To attest is to bear witness. to a fact. Briefly put, the essential conditions of a valid attestation under s. 3 are : (1 ) two or more witnesses. have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has. signed the instrument in the presence of the executant. It is essential that the witness should have- put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. “In every case the Court must be satisfied that the names were written animo attestandi”, see Jarman on Wills, 8th ed.

137. Evidence is admissible to show whether the witness had the intention to attest. “The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not,” see Theobald on Wills, 12th ed. p. 129. ,In Giria Datt v. Gangotri (1)the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses. as their signatures were not put “animo attestandi”. In Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo(2) it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In Shiam Sundar Singh v. Jagannath Singh (3) the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not dis-qualifled from taking as legatees.

The Indian Registration Act, 1908 lays down a detailed pro- cedure for registration of documents. The registering officer is;

(1) A.I.R. 1955 S.C. 346,351. (3) 54 M.L.J. 43. (2) I.L.R. 56 Cal. 598 under a duty to enquire whether the document is’ executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, s. 34(3). He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution, [s. 25(1)]. The signatures of the executant and of ,every person examined with reference to the document are endorsed on the document, (s.

58). The registering officer is required to affix the date and his signature to the endorsements (s. 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under s. 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.

The evidence does not show that the registering officer D.W. Kitto put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness see SurendraBahadur Singh v. Thakur Behari Singh(1). Like identifying witnesses Senkaranarayana and Kaki Abdul Aziz signatures on the document to authenticate the fact that they have identified the executant. It is not shown that they put their signatures for ‘the purpose of attesting the document. They cannot therefore be regarded as attesting witnesses.

It is common case that B. Somnath Rao attested the document. It follows that the document was attested by one witness only.

As to the second question, the argument on behalf of the respondents is that s. 100 of the Transfer of Property Act attracts s. 59 and that a charge can be created only by a document signed, registered and attested, by two witnesses in accordance with s. 59 where the principal money secured is Rs. 100 or upwards. The High Court accepted this contention following its earlier decisions in Viswanadhan v. Menon(2) and Shiva Rao v. Shanmugasundara swami (3) and held that the security bond was, invalid, as it was swami attested b one witness only. We are unable to agree with this opinion. Section 100 is in these terms “Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property’, and all the provisions hereinbefore contained which apply to a simple mortgage shall, so” far as may be, apply to such charge.

(1) (1939) 2 M.L.J. 762. (2) I.L.R. [1939].Mad. 199. (3) I.L.R. [1940] mad. 306.

Nothing in this section applies to the charge of a trustee on the trust property for expenses property incurred. in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.

The first paragraph consists of two parts. The first part concerns the creation, of a charge over immoveable property. A charge may be made by act of parties or by operation of law. No restriction is put on the manner in which a charge can be made. Where such a charge has been created the second part comes into play. It provides that all the provisions hereinbefore contained which apply to a simple mortgage shall; so far as may be, apply to such charge. The second part does not address itself to the question of creation of a charge. It does not attract the provisions of s. 59 relating to the creation of a mortgage. With regard to the applicability of the provisions relating to a simple mortgage, the second part of the first paragraph makes no distinction between a charge created by act of parties and a charge by operation of law. Now a charge by operation of law is not made by a signed, registered and attested instrument. Obviously, the second part has not the effect of attracting the provisions of s. 59 to such a charge. Likewise the legislature could not have intended that the second part would attract the provisions of s. 59 to a charge created by act of parties. Had this been the intention of the legislature the second part would have been differently worded.

If a charge can be made by a registered instrument only in accordance with s. 59, the subsequent transferee will always have notice of the charge in view of s. 3 under which registration of the instrument operates as such a notice. But the basic assumption of the doctrine of notice enunciated in the second paragraph is that there may be cases where the subsequent transferee may not have notice of the charge. The plain implication of this paragraph is that a charge can be made without any writing.

If a non-testamentary instrument creates a charge of the value of Rs. 100 or upwards, the document must be registered under s. 17 (1) (b) of the Indian Registration Act. But there is no provision of law which requires that an instrument creating the charge must be attested by witnesses.

Before s. 100 was amended by Act 20 of 1929 it was well settled that the section did not prescribe any particular mode of creating a charge. The amendment substituted the words “all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge,” for the words “all the provisions hereinbefore contained as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge.” The object of the amendment was to make it clear that the rights and liabilities of the parties in ,case of a charge shall,, so far as may be, the same as the rights, and liabilities of the parties to a simple mortgage. The amendment was not intended to prescribe any particular mode for the creation of a charge. We find that the Nagpur High Court came to a similar conclusion in Baburao v. Narayan(1). It follows that the security bond was not required to be attested by witnesses. It was duly registered and was valid and operative. As to the third question, we find that the decree dated March 19, 1954 declared that the security bond in respect of the immovable I properties would enure for the benefit of the appellant as a charge for the decretal amount. This relief was granted on the ,oral prayer of the plaintiffs. We are unable to agree with the High Court that in view of the omission to amend the plaint by adding a prayer for enforcement of the charge, the decree should be construed as containing merely a recital of the fact that a security bond had been executed. In our opinion, the decree on its true construction declared that the security bond created a charg e over the properties in favour of the plaintiffs for payment of the decretal amount and gave them the liberty to apply for sale of the ‘properties for the discharge of the encumbrance. Pursuant to the decree the properties were sold and the assets are now held by the Court. The omission to ask for, an amendment of the plaint was an irregularity, but that does not affect the construction of the decree. It was suggested that the decree was invalid as the High Court had no territorial jurisdiction under clause 12 of its Letters Patent to pass a decree for sale of properties outside the local limits of its ordinary original jurisdiction. For the purpose of these appeals, it is sufficient to say that the respondents cannot raise this question in the present proceedings. If the decree is invalid and the sale is illegal on this ground, the respondents cannot maintain their applications for rateable distribution of the assets. They ,,can ask for division of the sale proceeds only on the assumption that the properties were lawfully sold. It is therefore unnecessary to decide whether the objection as to the territorial jurisdiction of the High Court has been waived by the judgment-debtor and cannot now be agitated by him and persons claiming through him, having regard to the decisions in Seth Hiralal Patni v. Sri Kali (1)I.L.R. [1949] Nag. 802,1819-822., Nath(1), Behrein Petroleum Co. Ltd., v. P. J. Pappu (2) , Zamindar of Etiyapuram v. Chidambaram Chetty(1). As to the 4th question we find that the immoveable properties have been sold in execution of a decree ordering sale for the discharge of the encumbrance thereon in favour of the appellant. Section 73(1) proviso (c) therefore applies and the proceeds of sale after defraying the expenses of the sale must be applied in the first instance in discharging the amount due to the appellant. Only the balance left after discharging this amount can be dis- tributed amongst the respondents. It follows that the High Court was in error in holding that the respondents were entitled to rateable distribution of the assets along with the appellant.

In the result, the appeals are allowed, the orders passed by the Divisional Bench of the Madras High Court are set aside and the orders passed by the learned Single Judge are restored. There will be no order as to costs.

G.C.   Appeals allowed.

(1)  [1962] 2 S.C.R. 747,751-2.

(2)  [1966] 1 S.C.R. 461,462-3.

(3)  I.L.R. 43 Mad. 675 (F.B).