Research › Browse › Judgment

Allahabad High Court · body

1959 DIGILAW 361 (ALL)

Sunni v. Jharla

1959-12-17

DWIVEDI, GURTU

body1959
JUDGMENT Dwivedi, J. - It is a revision u/s 115, CPC by Sunni and others. It has come to us for disposal on a reference by our brother Bishambhar Dayal, J. 2. The Applicants Sled an application under Rule 13(iv) of the UP Regulation of Agricultural Credit Rules before the Additional Munsif, Varanasi, for the redemption of certain mortgaged property on the allegations that they were its proprietors, that it was mortgaged with the Defendant for a loan of Rs. 99/- on 1st June 1940, that it was a protected land within the meaning of that term in the UP Regulation of Agricultural Credit Act, No. XIV of 1940, (hereinafter called the Act), that the money secured by the mortgage was a loan within the meaning of that term in the Act, that they were agriculturists within the meaning of that term in the UP Debt Redemption Act, XIII of 1940, that they were entitled to the benefits of the two Acts and the mortgage was liable to be redeemed. 3. The Defendant inter alia alleged that the relationship of mortgagor and mortgagee did not exist between the parties, that the Applicants had set up a false case that he was in possession of the disputed property as a tenant and not as a mortgagee and that the learned Munsif could not take cognizance of the application. 4. The learned Munsif held that the property in suit had been mortgaged by the Applicants with the Defendant and the loan had been paid up by the usufruct of the property. He therefore, passed an order for redemption of the mortgaged property. 5. The Defendant then preferred an appeal to the Civil Judge, Varanasi, who held that the Applicants had failed to prove that the relationship of mortgagor and mortgagee existed between the parties and accordingly dismissed the application for redemption. Aggrieved by that order, the Applicants have preferred this revision. 6. The principal contention of the Applicants is that the Civil Judge had no jurisdiction to entertain the appeal, because the order of the learned Munsif, was passed under Rule 13(iv) of the UP Regulation of Agricultural Credit Rules, 1941 and no appeal lay from that order. 7. Aggrieved by that order, the Applicants have preferred this revision. 6. The principal contention of the Applicants is that the Civil Judge had no jurisdiction to entertain the appeal, because the order of the learned Munsif, was passed under Rule 13(iv) of the UP Regulation of Agricultural Credit Rules, 1941 and no appeal lay from that order. 7. It is accordingly necessary to examine the pertinent provisions of the Act and the Rules, Section 2(6) defines 'loan' as an advance whether in cash or kind, made on or after the first day of June 1940. According to Section 2(12) 'protected land' means with reference to a proprietor liable to pay local rate not exceeding twenty-five rupees per annum, all his land Section 10 directs that the execution of decrees, based on a loan, in which a court has ordered the sale of, or the appointment of a receiver for, any land shall be transferred to the Collector. Section 11(1) provides that if the land against which a decree is sought to be executed was 'protected land' on the date of the loan, the Collector may execute it inter alia by granting to the decree-holder a mortgage of the protected land or any part thereof in the form prescribed by Clause (a) of Sub-section (1) of Section 13. By Sub-section (2) thereof a mortgage granted under Clause (a) of Sub-section (1) is made subject to the provisions of Section 14 and to such, conditions consistent with the provisions of Section 15 as the Collector may think fit to impose. The mortgage shall be for such period not exceeding twenty-years as the Collector may prescribe. Section 13 of the Act reads as follows: (1) After the commencement of this Act, every 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. (b) a mortgage without possession subject to the condition that if the mortgagor fails to pay principal and interest according to the contract, the mortgagee may apply to the court of competent jurisdiction to place him in possession of the land : or (c) any other form which the provincial Government may prescribe. (2) Where a mortgagee makes an application under Clause (b) of Sub-section (1), the court may put him in possession of the land for such term not exceeding twenty years as it may, in the circumstances of the case, consider to be equitable and the mortgage from the date of such possession, shall be deemed to be a usufructuary mortgage made Under Clause (a) of Sub-section (1) for the term allowed by the Court. (3) Where in a usufructuary mortgage made after the commencement of this Act no term or a term exceeding twenty years is agreed upon such mortgage shall be deemed to be a usufructuary mortgage made under Clause (a) of Sub-section (1) for a term of twenty years. Section 14 of the Act reads as follows: In a mortgage of protected land in one of the forms permitted by or under the provisions of Section 13, the following conditions shall apply. (a) the mortgage shall be for a complete number of years; (b) possession shall be delivered to the mortgagee and resumed by the mortgagor on the expiry of the term of the mortgage or on redemption before the expiry of that term, only between the first day of May and the thirtieth day of June in any year. (c) the mortgage debt shall be extinguished on the expiry of the term for which the mortgagee is authorised to remain in possession; (d) the sum of money to be paid by a mortgagor on redemption of his land before the expiry of the term of the mortgage shall be such proportion of the mortgage money as may be prescribed, less any amount that may be due to the mortgagor for any loss or damage caused to the mortgaged property by any act of the mortgagee which is permanently injurious to the mortgaged property, other than an act which may have been permitted under Sub-section (1) of Section 15. 8. 8. By Section 21(1) a civil court, before whom any suit or proceeding relating to a mortgage of protected land is pending, is empowered to revise and alter the terms of the mortgage, if it has been made otherwise than in accordance with the Act and substitute for it a mortgage in a form permitted by or under the provisions of the Act and thereupon the revised mortgage shall take effect in supersession of the original mortgage Section 22 provides that if a person in possession of protected land by virtue of a mortgage made after the commencement of the Act, remains in possession of such land beyond the date on which, by the terms of the mortgage or the provisions of the Act, the land is required to be re-delivered to the mortgagor, the competent court shall on his application, eject such person from such land and restore him in possession thereof. Sub-section (1) a Section 25 provides that where a permanent alienation of protected land has been made otherwise than in accordance with the provisions of the Act, it shall take effect as a mortgage in the form prescribed by Section 13(1)(a). Sub-section (2) thereof provides that a civil court, before whom an suit or proceeding relating to the land covered by Sub-section (1) is pending, shall revise and alter the terms of such alienation so as to substitute for it a mortgage in accordance with that sub-section. By Section 26 the Assistant Collector, before whom proceedings under Sections 34 and 35 of the UP Land Revenue Act, 1901, in respect of a permanent alienation of protected land are pending, shall order, if he finds that such alienation has been made otherwise than in accordance with the provisions of the Act, that it shall take effect as a mortgage in the form prescribed by Section 13(1)(a). Section 29 directs that no appeal shall lie from a decree or order made by any court under the Act except as provided therein. Section 35 empowers the Provincial Government to make rules consistent with the Act for carrying out the purposes thereof. 9. The Provincial Government has made rules u/s 35, which are called the UP Regulation of Agricultural Credit Rules, 1941. Rule 13 is the only material provision, which needs to be quoted in its entirety. Section 35 empowers the Provincial Government to make rules consistent with the Act for carrying out the purposes thereof. 9. The Provincial Government has made rules u/s 35, which are called the UP Regulation of Agricultural Credit Rules, 1941. Rule 13 is the only material provision, which needs to be quoted in its entirety. It runs as follows: (13)--An application for the redemption of protected land shall be made-- (i) Where the mortgage has been granted by the Collector in execution of a decree, to the Collector; (ii) Where possession under a mortgage has been granted by a court under the provisions of Sub-section (2) of Section 13 of the Act, to such court; (iii) where the terms of a mortgage or of a permanent alienation have been revised and altered by a court or Assistant Collector under the provisions of Section 21, Section 25 or Section 26 of the Act, to such court or Assistant Collector as the case may be; (iv) in other cases, to the civil court having jurisdiction. 10. There is no dispute that the application for the redemption of the mortgage was made under Clause (iv) of Rule 13. It is also not in dispute that neither the Act nor the rules provide for an appeal against an order under that Clause. On account of Section 29, an aggrieved party cannot supplement a right of appeal from the order of the Munsif by recourse to the provisions of the Code of Criminal Procedure. We are, therefore, of opinion that in the present case, the civil Judge has no jurisdiction to entertain the appeal from the order of the Munsif. 11. But that does not conclude the matter. Learned Counsel for the opposite party contends that the learned Munsif himself had no jurisdiction to entertain an application under Clause (iv) of Rule 13 for the redemption of the mortgage. It is said that Clauses (i) to (iii) of Rule 13 deal with a mortgage, which, on the date of the application for its redemption, happens to be in accordance with the provisions of the Act and the scope of Clause (iv) is, therefore, limited to a similar kind of mortgage. It is said that Clauses (i) to (iii) of Rule 13 deal with a mortgage, which, on the date of the application for its redemption, happens to be in accordance with the provisions of the Act and the scope of Clause (iv) is, therefore, limited to a similar kind of mortgage. If a mortgage, as in this case, has not been executed in accordance with the provisions of the Act, Clause (iv) will not apply to it and the civil court will have no jurisdiction to entertain an application for its redemption. 12. There is no doubt that the scope of the first three Clauses of Rule 13 is a limited one. Under those Clauses, the Collector, appropriate civil court and the Assistant Collector are empowered o order redemption of mortgages of protected land, which have already been revised by them in a prior proceeding and brought into conformity with the provisions of the Act. Redemption of a mortgage often raises intricate question of fact and law and the civil court is, therefore, the ordinary forum for that purpose. Redemption of mortgages dealt with in Clauses (i) to (iii) of Rule 13 would however, hardly present any difficulty, because they are in the form permitted by the Act. They are self-liquidating possessory mortgages for a period not exceeding 20 years and on the expiry of the mortgage period what remains to be done is to restore possession to the mortgagor. The object of Rule 13 appears to be to provide for a cheaper and speedier procedure for re-instating the mortgagor to possession and the Collector and the Assistant Collector, alone with the appropriate civil court, have therefore also been empowered to order redemption of such mortgages as have already been altered by them into the standard form. In view of the object of Rule 13 as well as the context of Clause (iv) we consider that Clause (iv) should be construed ejusdem generis with the earlier Clauses, so that its scope would be confined to a mortgage of protected land which, on the date of the application for redemption, happens to be in the standard form without the intervention of the Collector, Assistant Collector and the Civil Court. 13. In the instant case, the mortgage in dispute is alleged to have been executed oh 1st June, 1940, when the Act had not come into force. 13. In the instant case, the mortgage in dispute is alleged to have been executed oh 1st June, 1940, when the Act had not come into force. It may be noted here that the Act came into force from 1st January, 1941. The mortgage-deed is not on record and the learned Munsif admitted secondary evidence in proof thereof. It is in respect of a plot of land. It is alleged that the mortgage was executed to pay of a loan of Rs. 99/- and the mortgagee was given possession of the mortgage land. Although it is said to be a usufructuary mortgage, it was not executed in the standard form. It would not, in our opinion, fall within the provisions of Clause (iv) of Rule 13 and the learned Munsif had no jurisdiction to entertain the application for its redemption under that Clause. The Applicants should have filed a regular suit in a competent civil court for redemption. 14. Rule 13 creates a special forum for the redemption of a particular class of mortgage of protected land. The learned Munsif, who entertained and decided the Applicants application for redemption of the mortgage in dispute, did not act as a regular civil court, but as a court of special jurisdiction. Since we have held that he had no jurisdiction to entertain the application for redemption, the entire proceedings before him were coram non judice. We would, therefore, quash (sic) is order under Article 227 of the Constitution. 15. In the result we allow the revision and set aside the order of the Civil Judge dated 16th January 1951. We also quash the order of the Munsif dated 18th May 1950 in exercise of our powers under Article 227 of the Constitution. 16. In the circumstances of this case, the parties shall bear their own costs here as well as before the courts below.