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Haridas Dayal Vs. Subraya Nagappa - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberCivil Reference No. 16 of 1906
Judge
Reported in(1907)9BOMLR885
AppellantHaridas Dayal
RespondentSubraya Nagappa
Excerpt:
civil procedure code (act xivof 1882), section 525-arbitration-award-application to hate the award filed-record of rights extract to be annexed to the application-bombay land record-of-rights act (bombay act iv of 1903), section 10.;it is not necessary to annex a record of right extract, required by section 10 of the bombay land record of rights act, 1903, to an application in the case of proceedings under section 525 of the civil procedure code 1882. - .....(b), namely-(applied to the rejection of plaint).(e) in any suit to which section 10 of the bombay land record of rights act, 1903, applies, if the certified copy therein mentioned is not annexed to the plaint and the plaintiff, on being required by the court to produce it, fails to do so within the time allowed by the court.10. now no doubt it has been held in maganlal v. lalchand ( : (1907)9bomlr259 that the order that an award be filed under section 525 of the civil procedure code should be regarded as a decree and consequently a suit filed by the plaintiff to obtain a declaration that the decree was invalid was barred as res judicata, the grounds on which the plaintiff based his suit having been grounds which had previously been substantially raised and determined in proceedings.....
Judgment:

Louis P. Russell, Acting C.J.

1. This matter has been referred to us by the Subordinate Judge of Kumta purporting to act under Section 617 of the Civil Procedure Code.

2. It appears that an award had been passed between Haridas Dayal and one Subraya Nagapa in respect of a mortgage-deed of landed property by private arbitration without the inter, vention of the Court and Haridas applied that the award be filed under Section 525 of the Civil Procedure Code. The award deals with the mortgage lands.

3. Subraya appeared in person and stated that he had no objection to have the award filed.

4. The application was numbered and registered as a suit Haridas being the plaintiff and Subraya the defendant.

5. The first question is whether this application to file the award relates to land under Section 10, Clause (i) of the Bombay Record of Rights Act IV of 1903.

6. Mr. Mulgaonkar as amicus curies for Haridas said he would not contest this point and in that, we think, he was right as the award obviously relates to land.

7. The next point we have to consider is whether in the case of proceedings on application under Section 525 of the Civil Procedure Code a Record of Right extract is necessary under the above Bombay Act.

8. I read the material portions of Section 10.

Subject to any exemption under Section 17, in any suit relating to land in a village, to which the provisions of this section have been applied under Section 1, Sub-section (3), the plaintiff shall annex to the plaint, or, produce within a reasonable time to be fixed by the Court, a certified copy of any entry or entries in the Record of rights regarding the land in respect of which the suit is brought,...

9. Then Clause (2) provides, 'In the case of any such suit the following clause shall be deemed to be added to Section 54 of the Code of Civil Procedure as Clause (b), namely-(applied to the rejection of plaint).

(e) in any suit to which Section 10 of the Bombay Land Record of Rights Act, 1903, applies, if the certified copy therein mentioned is not annexed to the plaint and the plaintiff, on being required by the Court to produce it, fails to do so within the time allowed by the Court.

10. Now no doubt it has been held in Maganlal v. Lalchand ( : (1907)9BOMLR259 that the order that an award be filed under Section 525 of the Civil Procedure Code should be regarded as a decree and consequently a suit filed by the plaintiff to obtain a declaration that the decree was invalid was barred as res judicata, the grounds on which the plaintiff based his suit having been grounds which had previously been substantially raised and determined in proceedings taken under Section 525 of the Civil Procedure Code, still we cannot hold that it necessarily follows that the application under Section 525 is to be treated as if it were a plaint. For we cannot see how that which is not a plaint could be returned under Section 54 of the Civil Procedure Code; and it seems to us that had it been intended to treat this application for all purposes as a plaint, words similar to those under Section 410 of the Civil Procedure Code would have been used.

11. For these reasons we answer the second question in the negative.

12. The third question submitted to us is whether such extract from the Record of rights, is exempt from Court fees.

13. Mr. Mulgaonkar has pointed out to us that by the order in the Gazette of India of the 25th July 1903, Part I, page 604, such extracts are exempt from Court fees and ibid page 828, certified copies of applications are also exempted.

14. We therefore answer the third question in the affirmative.

15. We have to express our obligations to Mr. Mulgaonkar and Mr. Sumitra for the way they put the case before us as amici curioe.


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