Anant Narain Misra v. Bhawani Pher Dubey — 1959 DIGILAW 171 (ALL)

JUDGMENT R.N. Gurtu, J. - This is a Civil Revision which has been referred to this Bench. It arises under the following circumstances. The applicant had obtained a simple money decree against one Shitla Sahai in 1937 and had put that decree in execution and had prayed for the sale of the property in dispute. The property was protected land under the U.P. Debt Redemption Act, 1940. Therefore the Collector granted a self-liquidating mortgage dated the 15th May 1947 for a period of 12 years. On 29th September 1948 possession was delivered to the applicant and his name was mutated in the Khewat. 2. The opposite parties of this revision had obtained a simple mortgage of the very same property in 1929. On 27th March 1944 a preliminary decree for sale of the property was passed and on 10th May 1947 a final decree was passed for sale. In view of the fact that this land was protected land under the U.P. Debt Redemption Act, once again a self-liquidating mortgage was granted to Bhawani Pher on 28-8-1949 for a period of 12 years and in pursuance of that mortgage he obtained possession on 17-10-1949 by dispossessed" the applicant. It may here be stated that the applicant was not made a party to the proceedings wherein a self-liquidating mortgage way granted to Bhawani Pher. The applicant having been dispossessed filed an application in the executing court under the provisions of Or. 21, Rr. 100 and 101, C.P.C. complaining of the dispossession. That objection was dismissed by the executing court on the ground that the applicant was a representative of the common mortgagor judgment debtor, and was not in "possession" when dispossessed of the land "on his own account." The applicant has filed this revision in this court and has preferred this course rather than institute a suit to establish the right which he claims to the present possession of the land under R. 103 of Or. 21, C.P.C. 3. It was contended before us by learned counsel for the applicant that the court below was wrong in holding that the applicant was a representative of the judgment debtor and erred in refusing to exercise-jurisdiction under the aforesaid Or. 21, Rr. 100 and 101, C.P.C. for that reason. 21, C.P.C. 3. It was contended before us by learned counsel for the applicant that the court below was wrong in holding that the applicant was a representative of the judgment debtor and erred in refusing to exercise-jurisdiction under the aforesaid Or. 21, Rr. 100 and 101, C.P.C. for that reason. His contention was that the holder of a self-liquidating mortgage under the provisions of Sec. 17 of the U. P. Debt Redemption Act (Act XIII of 1940) is not a representative of his mortgagor, but that the mortgagee under a mortgage created under Sec. 17 of the said Act holds the mortgaged land on his own account. In order to deal with the submission, we think, it is necessary to quote the last two provisos of Sec. 17 (1) which are as follows:- "Provided also that the court may execute a decree to which this Act applies by granting to the decree-holder a self-liquidating mortgage, for a period of not more than twenty years, of such land as is protected from sale, transfer or foreclosure by the provisions of this section. Provided also that when a mortgage has been granted under the provisions of this section the same land shall not be mortgaged in execution of any other decree to which this Act applies against the same debtor or his heir or successor if the term of the mortgage together, with the term or terms of the previous Mortgage or mortgages exceed twenty years." 4. The form of the self-liquidating mortgage to be granted under the aforesaid provisos is laid down by R. 9 framed by the Government under Sec. 17 of the U. P. Debt Redemption Act, 1940. R. 9, runs as follows:- "The form of the mortgage granted under the third proviso to sub-Sec. (1) of Sec. 17 of the Act shall be that prescribed in Cl. (a) of sub-Sec. (1) of Sec. 13 of the U. P. Regulation of Agricultural Credit Act, 1940, and conditions will be those prescribed by Sec. 14 and those which the Collector may, consistent with the provisions of Sec. 15 of the Act, think fit to impose." 5. (a) of sub-Sec. (1) of Sec. 13 of the U. P. Regulation of Agricultural Credit Act, 1940, and conditions will be those prescribed by Sec. 14 and those which the Collector may, consistent with the provisions of Sec. 15 of the Act, think fit to impose." 5. Because of the reference in this rule to Sec. 13 of the U.P. Regulation of Agricultural Credit Act, it becomes necessary to quote Sec. 13 (1) (a) of that Act which runs as follows:- "After the commencement of this Act, (very mortgage of protected land shall be made only in one of the following forms namely- (a) a usufructuary mortgage for which the mortgagor delivers proprietary possession of the land to the mortgagee and authorises him to retain such possession and to receive the rents and profits of the land in lieu of interest and towards payment of the principal, on the condition that after the expiry of such term not exceeding twenty years, as may be agreed upon, the land shall be re-delivered to the mortgagor;" 6. The net position, therefore, is that a mortgage granted under the 2nd and 3rd provisos to Sec. 17 (1) is a mortgage whereby proprietary possession of the land is delivered to the mortgagee and he is authorised to retain such possession and to receive the rents and profits of the land in lieu of interest and towards the payment of the principal on the condition that after the expiry of such term not exceeding 20 years, as may be agreed upon, the land shall be re-delivered to the mortgagor. Therefore, it is clear to us that the person in whose favour a mortgage of the land is granted under the 2nd and 3rd provisos to Sec. 17 (1) of the Debt Redemption Act will be considered to be as in proprietary possession thereof with a right to retain and to receive the rents and profits and the mortgagor has no concurrent interest left during the term of the mortgage. He has only a right to the redelivery of the mortgaged land upon the conclusion of the term. He has only a right to the redelivery of the mortgaged land upon the conclusion of the term. In these circumstances it cannot be said that a mortgagee of a mortgage created under Sec. 17 (1) provisos 2nd and 3rd of the Debt Redemption Act is not holding the land in his own right, but is holding the property as a representative of the interest of the mortgagor. It will be noted from the language of Sec. 17 (I) of the U. P. Regulation of Agricultural Credit Act that no right to redeem remains for the duration of the mortgage in the mortgagor. In such circumstances for the mortgage period it can hardly be said that the mortgagee is not in possession of the property on his own account, but that he is the representative of the judgment debtor. 7. We now cite the decision reported in Shafiuddin v. Lochan Singh, II I.L.R. AIId. 94 where it was held that "A mortgagee who is in possession of the mortgaged property under the mortgage is in possession on his own account within the meaning of Sec. 230 of Act VIII of 1859 and Sec. 332 of Act X of 1877." 8. The aforesaid Sec. 230 is analogous to R. 100 of Or. 21 of Act V of 1908. 9. We are therefore of the opinion that the applicant could not be considered to be a representative of the judgment-debtor, and that it ought to have been held that he was holding the land on his own account. 10. Upon this view it might have become necessary to consider whether we would have been entitled to interfere in revision in this case inasmuch as a person aggrieved by an order under R. 101 of Or. 21 has a right to file a regular suit under R. 103 Of Or. 7, C.P.C. It was urged that we were not entitled to interfere and learned counsel for the respondents cited the case of Bhim Naik v. Chakradhar Maity, AIR 1930 Calcutta 348 (1) and contended that interference in revision was not open because there was a better remedy by way of a suit. We need not however consider this objection because this revision will in any case have to be dismissed upon another ground which was urged by learned counsel for the opposite parties in support of the judgment of the court below. We need not however consider this objection because this revision will in any case have to be dismissed upon another ground which was urged by learned counsel for the opposite parties in support of the judgment of the court below. Learned counsel contended that R. 100 of Or. 21, C.P.C. could be availed of when a person is dispossessed either by a holder of a decree for possession or by a purchaser who had purchased in execution of a decree. He contended that the opposite parties fell in neither category. The opposite parties were mortgagees under the self-liquidating mortgage given to them under Sec. 17(1) provisos 2nd and 3rd of the U.P. Debt Redemption Act. The holder of such a self-liquidating mortgage, it was contended could not be said to be a holder of a decree for possession nor could he be said to be a purchaser in execution of a decree. He was simply a person who had received self-liquidating mortgage. Learned counsel for the applicant argued that possession of such a holder of a self-liquidating mortgage was analogous to the holder of a decree for possession and his contention was that possession under the self-liquidating mortgage was given by virtue of a mortgage which was created in pursuance of an order of the Court that it should be created and that such an order that the debt be liquidated by the creation of a self-liquidating mortgage amounted to a decree for possession. We are unable to accept this contention. The decree which has been passed in this case and which has been satisfied by the execution of a self-liquidating mortgage was not a decree for possession, but it was a decree for sale on foot of a mortgage. Ordinarily, of course, in execution of such a decree the mortgaged property would have been sold up and then purchased at an auction by the auction purchaser. By virtue of the special provision of the United Provinces Debt Redemption Act the decree for sale could not be effected and no sale took place but a self-liquidating mortgage was made pursuant to the provisions of the Debt Redemption Act. We do not think that it can be fairly said that there was in existence at any time a decree for possession of the property in question, or that a sale has taken place. We do not think that it can be fairly said that there was in existence at any time a decree for possession of the property in question, or that a sale has taken place. In the circumstances we agree with the contention of learned counsel for the opposite parties that R. 100 of Or. 21 C.P.C. was not available to the applicant in this case and we are, therefore, of the view that the executing court for this reason had no jurisdiction to proceed. The executing court has held that it had no jurisdiction to proceed though for another reason. Therefore the operative part of the order of the executing court which was one dismissing the application was correct. 11. We accordingly reject this revision in the circumstances directing the parties so bear their own costs.