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Bapu Piraji and anr. Vs. Bhiku Nagu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 550 of 1951
Judge
Reported inAIR1953Bom120; (1952)54BOMLR935; ILR1953Bom211
ActsDekkhan Agriculturists Relief Act, 1879 - Sections 3, 10, 15D, 15D(3) and 53
AppellantBapu Piraji and anr.
RespondentBhiku Nagu
Appellant AdvocateB.N. Gokhale, Adv.
Respondent AdvocateK.V. Joshi, Adv.
Excerpt:
.....for redemption passed by civil judge--whether appeal lies to district court against decree.; in a suit filed under section 15d of the dekkhan agriculturists' relief act, 1879, once an application is made under section 15d (3) of the act, unless the suit falls under any of the sub-clauses of section 3(b) of the act, the decree passed in it is appealable and section 10 of the act does not apply to such a decree. - - order (1) a very interesting point has been raised by mr. therefore, the legislature clearly, provided that whenever there was a redemption suit and the value was a particular value and it was filed in a particular court, then a decree in such a redemption suit should be subject to appeal. the district court, applying the well known tests, has come to the contrary conclusion..........unless the suit falls under any of the sub-clauses of section 3(b), the decree passed in such a suit is appealable and section 10 does not apply to such a decree. therefore, in my opinion, the learned assistant judge was right in entertaining an appeal against the decision of the trial court. in this view it is unnecessary to decide whether the assistant judge was competent to decide a revisional application, assuming that a revision lay to him and not an appeal. (4) on merits there is no substance in the application. the trial court held that the transaction was a mortgage. the district court, applying the well known tests, has come to the contrary conclusion and no question of jurisdiction can arise in respect of the decision come to by the learned assistant judge. (5) the result is.....
Judgment:
ORDER

(1) A very interesting point has been raised by Mr. Gokhale on this revision application. A suit was filed by the petitioners under Section 15D of the. Dekkhan Agriculturists' Relief Act for accounts. The claim in suit was valued at Rs. 5 and it was instituted in the Court of the Civil Judge, Junior Division, Karjat. A certain transaction was challenged as a mortgage. The learned Judge held that the transaction was a mortgage and not a sale and found that there was nothing due at the foot of the mortgage on taking accounts. Then the petitioners made an application under Sub-section (3) of Section 15D for redemption of the mortgage. In that application the petitioners prayed that the suit for accounts be converted into a suit for redemption. They paid the necessary court-fees on a redemption suit and thereupon the learned Judge passed a redemption decree.

From this decree an appeal was preferred to the District Court, Ahmednagar. The appeal was heard by the Assistant Judge. He allowed the appeal, set aside the decree of the lower Court, and ordered that the plaintiffs' suit be dismissed. It is from that order that this revision application is preferred, and the contention urged by Mr. Gokhale is that no appeal lies from the decision of the trial Court, and even the revision that lies can only be heard by the District Judge, and all that the Assistant Judge can do is to refer the record with his remarks to the District Judge and the District Judge alone can pass the final orders on that application.

(2) Section 3 provides that the provisions of Chapter II shall apply to (a) suits for an account, whatever be the amount or value of the subject-matter thereof, and Section 10 provides that no appeal shall lie from any decree or order passed in any suit to which Chapter II applies. The only right that an aggrieved party has is to go in revision to the District Judge under Section 53. A suit that is filed under Section 15D is undoubtedly a suit for accounts and it would fall under Section 3(a), and any decree or order passed in such a suit will not be subject to appeal but can only be corrected in revision. The difficulty that arises in this matter is that although the suit was originally filed for accounts before a decree was passed in that suit under Section 15D(3), the plaintiffs applied to the Court to pass a decree for redemption of the mortgage and on that application a decree for redemption was passed, and the very short question that arises for my decision is, what is the effect in law of such an application being made by the plaintiffs under Section 15D(3). Mr. Gokhale's contention is that notwithstanding the application made by the plaintiffs under Section 15D(3) the nature of the suit is not changed, the suit continues to be a suit for accounts, and the redemption decree that is passed is a decree passed in a suit for accounts, and therefore Section 10 applies to such a suit notwithstanding the fact that ultimately a redemption decree is passed.

I am unable to accept that contention. When we turn to Section 3(b), that section deals with suits of various descriptions, and one of them is a suit for redemption of mortgaged property when the plaintiff, or, where there are several plaintiffs, any one of the plaintiffs, is an agriculturist, and Section 3(b) provides that when such a suit is heard by a Subordinate Judge of the First Class and the subject-matter thereof does not exceed in amount or value five hundred rupees, or when such a suit is heard by a Subordinate Judge of the Second Class and the subject-matter thereof does not exceed in amount or value one hundred rupees, or when such a suit is heard by a Subordinate Judge of the Second Class and the subject-matter thereof exceeds one hundred rupees, but does not exceed five hundred rupees, in amount or value, and the parties to the suit agree that such provision , shall apply thereto, then decrees in such suits are governed by Section 10 and no appeal lies.

In other words, there is an appeal in every redemption suit where the value exceeds Rs. 500 if it is filed before the Senior Civil Judge, or if it exceeds Rs. 100 if it is filed before the Junior Civil Judge, or if it is filed before a Civil Judge, Junior Division, and exceeds in value Rs. 100 and there is no necessary agreement between the parties. Therefore, the Legislature clearly, provided that whenever there was a redemption suit and the value was a particular value and it was filed in a particular Court, then a decree in such a redemption suit should be subject to appeal.

(3) Now, it would indeed be a curious result if the plaintiff, instead of filing a redemption suit as he can, merely by applying under Section 15D(3), could deprive the defendant of his right to appeal, whatever may be the value of the subject-matter. In this very case the decree for redemption is for Rs. 200 and the suit was filed, as I have pointed out, before the Junior Civil Judge. If a redemption suit had been filed before the Junior Civil Judge, it is clear that as it does not fall under Section 3(b), the decree would have been appealable. But according to Mr. Gokhale, because a redemption suit was not filed and a suit for accounts was filed and then on application a decree for redemption was passed, the decree is not appealable, but can only be corrected by revision. In my opinion, it is clear that under Section 15D(3) an option is given to the plaintiff to make an application for a decree for redemption. Instead of making such an application he may, content himself with a decree in a suit for accounts and at a later stage file an independent suit for redemption. But whether he files an independent suit for redemption or makes an application under Section 15D(3), in my opinion the result is the same.

In substance, as soon as he makes an application under Section 15D(3), his original suit for accounts is converted into a suit for redemption. It is as if he had amended the plaint praying for redemption. Instead of amending the plaint he is permitted by law to make an application to the Court to pass a decree for redemption. There is no difference whatsoever in the nature of the suit after the application is made under Section 15D(3) and a separate suit that the plaintiff might file for redemption. Therefore, once an application is made under Section 15D(3), unless the suit falls under any of the sub-clauses of Section 3(b), the decree passed in such a suit is appealable and Section 10 does not apply to such a decree. Therefore, in my opinion, the learned Assistant Judge was right in entertaining an appeal against the decision of the trial Court. In this view it is unnecessary to decide whether the Assistant Judge was competent to decide a revisional application, assuming that a revision lay to him and not an appeal.

(4) On merits there is no substance in the application. The trial Court held that the transaction was a mortgage. The District Court, applying the well known tests, has come to the contrary conclusion and no question of jurisdiction can arise in respect of the decision come to by the learned Assistant Judge.

(5) The result is that the application tails. Rule discharged with costs.

(6) Revision dismissed.


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