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1949 DIGILAW 282 (ALL)

Sampat Kumar v. Moti

1949-11-09

CHANDIRAMAN, KIDWAI

body1949
JUDGMENT Kidwai and Chandiramani, JJ. - It appears that the present applicant filed an application u/s 12 of the Agriculturists' Relief Act in the Court of the Sub-Divisional Officer, Sandila, district Hardoi, on 11th July 1944, for redemption of a usufructuary mortgage of Rs. 500/-, dated 26th November 1928, in favour of Gur Dayal, now represented by the opposite parties. On the same day this was transferred to the revenue officer for disposal. The trial Court decreed the claim for redemption on Rs. 500/- being paid along with the costs of the suit within three months of the date of the order. On appeal the suit for redemption was dismissed with costs. The mortgagor has come up in revision, and the only ground pressed before the Court is that the Sub-Divisional Officer had no power to transfer the case to the revenue officer and that the decree passed by the trial Court and subsequently by the appellate Court was without jurisdiction. As the question involved was of general importance a learned Single Judge of the Court referred this case to a Bench for decision. 2. It appears that u/s 10 of the Agriculturists' Relief Act applications under Chapter III of the Act shall, if the principal money secured does not exceed Rs. 500/-, be brought before the Collector and the word "Court" in this Chapter shall in such cases include the "Collector". Section 12 of the Agriculturists' Relief Act occurs in Chapter III. Section 22 of the Agriculturists' Relief Act reads as follows: (1) The Local Government may empower any Assistant Collector of the first class to exercise the powers of a Collector under this chapter. (2) The Collector may transfer any proceedings under this Chapter- (a) from his own Court to that of an Assistant Collector empowered under Sub-section (1); (b) from the Court of an Assistant Collector subordinate to him either to his own Court or to that of any other Assistant Collector empowered under Sub-section (1). 3. (2) The Collector may transfer any proceedings under this Chapter- (a) from his own Court to that of an Assistant Collector empowered under Sub-section (1); (b) from the Court of an Assistant Collector subordinate to him either to his own Court or to that of any other Assistant Collector empowered under Sub-section (1). 3. It is contended on behalf of the applicant that the power of transfer mentioned in Sub-section (2) of the section cannot be exercised by any Assistant Collector empowered under Sub-section (1) while, on the other hand, it is contended for the opposite parties that the powers which may be conferred on an Assistant Collector, first class, are all those under Chapter III and the power under Sub-section (2) of Section 22 given to the Collector is also a power under Chapter III and therefore the order of transfer by the Sub-Divisional Officer was not without jurisdiction. It appears to us that the contention of the applicant must prevail. 4. Chapter III of the Agriculturists' Relief Act begins from Section 9 and ends with Section 27. The heading of the Chapter is "Mortgages and their Redemption". Section 10 alone provides that applications for redemption shall, if the principal money secured does not exceed Rs. 500/-, be brought before the Collector and the word "Court' in the Chapter shall include the "Collector." This is the only section under which jurisdiction is given to the Collector to entertain applications for redemption; otherwise the ordinary Courts, that is, the Civil Courts, have jurisdiction in matters of redemption of mortgages. Sections 11 to 21 deal with the definition of a mortgagor and mortgagee, the manner in which the application is to be made, the matters which shall be considered by the Court in determining the amount of the mortgage money due before redemption can be allowed and such other powers and duties of the Court as are necessary or essential for disposal of the application for redemption. Section 24 prescribes the conditions under which an applicant shall be deemed to be an agriculturist for the purposes of Section 11 or 12. Section 25 provides bar of suits in certain cases and Section 20 provides for limitation in the proceedings. Section 27 lays down the applicability of the provisions of the Code of Civil Procedure. Section 23 deals with appears. Section 25 provides bar of suits in certain cases and Section 20 provides for limitation in the proceedings. Section 27 lays down the applicability of the provisions of the Code of Civil Procedure. Section 23 deals with appears. None of the sections in this Chapter, except Section 22, deals with anything other than what is necessary in connection with the disposal of applications for redemption. Section 22, on the other hand, is the only section which deals with transfer of such applications before the Collector. The section provides that the Collector has the power to transfer proceedings before him to any Assistant Collector of the first class on whom powers of a Collector have been conferred under Sub-section (1) of Section 22. Obviously the powers which can be conferred are those which relate to the disposal of the applications and not to those relating to transfer. Sub-section (2) of Section 22 authorises the Collector to transfer proceedings from his own Court to that of an Assistant Collector empowered under Sub-section (1), and Clause (b) empowers him to transfer proceedings from the Court of an Assistant Collector subordinate to him either to his own Court or to that of any other Assistant Collector empowered under Sub-section (1). The express language of the Sub-section excludes the exercise of the power of transfer by any person other than the Collector. 5. We accordingly hold that in the present case the Sub-Divisional Officer had no power to transfer the application u/s 12 of the Debt Redemption Act to the Revenue Officer and the Revenue Officer in disposing of the application acted therefore without jurisdiction. The subsequent proceedings in appeal are consequently also without jurisdiction. 6. The result, therefore, is that we allow this application, set aside the decree of the Court below and direct that the application for redemption u/s 12 of the Agriculturists' Relief Act shall be disposed of by the Sub-Divisional Officer himself according to law. In the circumstances of this case we direct that the parties shall bear their own costs incurred hitherto Stay orders, dated 13th September 1946 and 25th November 1946 are discharged.