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1945 DIGILAW 154 (ALL)

Vidyasagar Avasthi v. Har Har Bakhsh Singh

1945-04-23

GHULAM HASAN, MISRA

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JUDGMENT Ghulam Hasan and Misra, JJ. - This is a mortgagee's application u/s 115, C. P. C. against an appellate order of the learned District Judge, Lucknow. The matter arose out of an application for redemption of a possessory mortgage u/s i2, Agriculturists' Relief Act read with Sections 8 and 9, U. P. Debt Redemption Act. The trial Court allowed redemption on payment of Rs. 1,230/13/2. The case was taken up to the Court of the District Judge, Lucknow, by the parties. The mortgagors' appeal was dismissed, but the cross-objections of Vidaya Sagar Avasthi were partially allowed, the amount of the decree being increased to Rs 1,448/9/4 The mortgagee, Vidaya Sagar Avasthi, has challenged the order of the lower Court so far as it is against him by way of this revision application. 2. His first contention relates to applications of Sections 8 and 9, U. P. Debt Redemption Act, in calculating the mortgage money. The mortgage in suit was executed in 1933 by Har Har Bux Singh, Satrohan Singh and Mst. Janaka for a sum of Rs. 4,000 in lieu of the money due on a prior simple mortgage of 1925 for Rs. ?,000. To this earlier mortgage Mst. Janaka was not a party. As the provisions of Sections 8 and 9, U. P Debt Redemption Act (XIII of 194''), apply only to a "loan", and as a loan, according to Section 2, clause 9, must be an "advance'' to an agriculturist, it is urged that the p3sressory mortgage could not be a loan at any rate so far as Mst. Janaka was concerned though it is conceded that she and other co-mortgagors were agriculturists within the meaning of the Act. Since she was, it is said, a stranger to the mortgage of 1925 and a stranger also to the earlier promissory note executed by Har Har Bux Singh in May 1924, which formed a part of the consideration of a simple mortgage of 1925, the transaction could not attract the provisions of Act XIII of 1940. The contention was advanced on behalf of the mortgagee in the trial Court but was rejected. The question does not appear * to have been reagitated before the lower appellate Court. The possessory mortgage deed of 1933, Exhibit 1, which Mst. The contention was advanced on behalf of the mortgagee in the trial Court but was rejected. The question does not appear * to have been reagitated before the lower appellate Court. The possessory mortgage deed of 1933, Exhibit 1, which Mst. Janaka was also an executants, stated in clear terms that the amount secured, was due from all the three mortgagor?, though the earlier mortgage was executed by Har Har Bux Singh and Satrohan Singh alone. The reason stated was that these two persons managed the family property. The mortgage of 925, Exhibit 4, also recited that the promissory note executed by Har Har Bux Singh was partly for payment of Mst. Janaka's debts. The original advance was, there- fore, made to Har Har Bux Singh, Satrohan Singh as well as to Mst. Janaka. Her statements in Exhibit 1 constitutes an admission on the part of the appellants and in face of it the argument that the consideration of that document was not an advance made to her could not be sustained. We may add that in any event the debt would be in substance a loan within the meaning of that word as defined in Act XIII of 1940, and the transaction could not be taken out of the Act. 3. The next contention, which has been pressed on applicant's behalf, is based on the provisions of Section 12, Agriculturists' Relief Act An application under that section is competent only after the principal money "has become due"- The possessory mortgage of 1933 was for a period of ten years, and it is, therefore, urged that the application for redemption presented in 1941 was premature. Section 7 of the U. P. Debt Redemption Act, it will be ob- served, renders the application for redemption competent at any time notwithstanding any law or contract to the contrary. The effect of this section, however, is sought to be got over on the ground that the second schedule of the Act does not repeal Section 12, Agriculturists' Relief Act, and since repeal by implication is not to be favoured, the words "after the principal has become due" must in spite of Section 7 of the new Act have operation. A perusal of Act XIII of 1940 would show that there is no substantive provision in it for redemption of mortgages. A perusal of Act XIII of 1940 would show that there is no substantive provision in it for redemption of mortgages. In cases of the particular class of agriculturists governed by it the Act was intended, as its pre-amble shows, to give further benefit to the agriculturists-debtors and was, therefore, meant to enlarge the scope of the redemption chapter of the Agriculturists' Relief Act to the extent indicated therein. By the provisions of Section 7 the legislature intended that a person who could seek relief under the new Act could avail of the machinery for redemption prescribed under the Agriculturists' Relief Act without being fettered by the consideration that the period for payment had not yet expired. Our view in this behalf has been explained in the Full Bench judgment in Salik Ram v. Ram Sarup and others Reported in 1945 O A (C C) 133 : A W R (C C) 133 (Miscellaneous Appeal No. 84 of 1941) wherein it was held that the provisions of the U. P. Debt Redemption Act leave intact the redemption chapter of the Agriculturists' Relief Act except for such modifications as they prescribe in respect of the class of agriculturists whom they govern. 4. There were a number of further contentions urged on behalf of Vidya Sagar Avasthi at the bar. They were as follows : (a) that in calculating the amount collided by the mortgagee during the period of his possession the lower Court ought not to have taken into account the aid matalha amounting to Rs. 317-9 0 which has been held to have been lealised in 1341 Fasli. The argument is based on the ground tint there is no evidence on the record in support of these collections. It is said that definite proof is all the more necessary as these collections would be in the nature of illegal exactions, (b) that the costs of collection amounting to Rs. 41-11-0 in respect of Rs. 417 realised by the mortgagee in 1339 Fasli ought to have been credited to the mortgagee, (c) that the method of accounting adopted by the lower Courts is wrong inasmuch as the amounts realised by the mortgagee from time to time have been credited towards the discharge of the interest due up to the time of realisation and the balance has been utilised for reducing the capital. It is suggested that the mode of accounting should have been different inasmuch as the Courts below ought to have ascertained on the one hand the entire mortgage money due on the date of the application and on the other the entire realisations. The balance would, according to the suggestion, represent the amount on the payment of which redemption was permissible, and (d) that the trial Court ought to have allowed costs of the suit to tae mortgagee. 5. All these contentions, in our opinion, are beyond the scope of Section 115, C. P. C. The latter section, as was pointed out in Maqbul Bahadur v. Pratap Bhan Prakash Singh 1944 O A 277 : A W R (CC) 277 : OWN 440, is definitive of the limits within which the revisional powers of a High Court can be exercised. The section, in the word of their Lordships of the Privy Council in Balkrishna Udayar v. Vasudeo Aiyar (1917) 44 I A 261, applies to jurisdiction alone, the irregular exercise or non-exercise of it or the illegal assumption of it. It is not directed against conclusions of law or facts in which the question of jurisdiction is not involved. 6. The remarks of Lord Hobhouse in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa (1901) 27 I A 216 to the effect that the power to decide the matter carries with it the power to decide rightly as well as wrongly must in this connection be borne in mind. The Courts below had evidently the jurisdiction to decide the questions which were before them and they did so. Our attention has not been drawn to any irregularity or illegality in the exercise of that jurisdiction, and the contentions advanced by the learned Counsel, therefore, must fail. As on these matters we have heard the arguments of the learned Counsel on merits, we may mention that none of them are sound. Point (a) is concluded by the agreement of 24i:h November, 1941. Point (6) does not legitimately arise, because Vidya Sagar Avasthi was not in possession in 1339 Fasli under the mortgage of 1933. It appears that during the continuance of the simple mort- gage of 1925, the mortgagors directed some of their tenants to make certain payments, to the mortgagee. Obviously Vidya Sagar Avasthi cannot be entitled to any costs of collection in respect of the amount so paid. It appears that during the continuance of the simple mort- gage of 1925, the mortgagors directed some of their tenants to make certain payments, to the mortgagee. Obviously Vidya Sagar Avasthi cannot be entitled to any costs of collection in respect of the amount so paid. In fact there could be no expenses for costs of collection in respect of such sums. The next point is also without substance as there is no justification, in our opinion, for adopting the mode of accounting suggested under point (c). Point (d) refers to costs of the trial Court which were completely within its discretion. Even if we took a different view on the question which we do not, we would be reluctant to interfere with the order in that behalf. We accordingly dismiss this application with costs