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Nasib Kohar Vs. Raghunath Misir and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All111
AppellantNasib Kohar
RespondentRaghunath Misir and ors.
Excerpt:
.....1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the case of the plaintiff was that the entire mortgage money bad been discharged by the usufruct. 6. the learned counsel for the appellant has, we might note, made it clear that he will be satisfied if the decree for accounting, granted by the learned additional munsif, stands. but if the legislature clearly enacted two sections, one for redemption and the other for accounting, it is open to a party to bring an action under one of the two sections......it was couched, could not be granted by that court.4. the learned additional munsif decreed the suit. on appeal, the learned additional civil judge came to the conclusion that the suit was virtually one for redemption and, as the mortgage money was less than rs. 500, the matter was cognisable only by the revenue court. he, therefore, directed the return of the plaint to the proper court, against this order the plaintiff has come to this court in first appeal.5. it is contended by the learned counsel for the appellant that the suit was cognisable by the civil court. it is not denied that a prayer for accounting could be made within the meaning of section 33 of the act. if, along with the prayer for accounting, there was another prayer, which went beyond the scope of the section, the.....
Judgment:

Sinha, J.

1. This is an appeal by the plaintiff against an order of the learned Additional Civil Judge of Gorakhpur, directing the plaint to be returned for presentation to the proper Court under Order 43, Rule 1, Civil P.C.

2. The suit was brought under Section 33, U.P. Agriculturists' Relief Act (Act No. XXVII [27] of 1934), and along with the prayer for accounting, was a prayer for possession. The mortgage in respect of which the relief was claimed was for a sum of Rs. 99-15-0, granted by the plaintiff in favour of Jaddu Misir, the father of the defendant about twenty five years ago. The case of the plaintiff was that the entire mortgage money bad been discharged by the usufruct.

3. Various defences were raised. Suffice it to say, that there was no plea that the suit was not cognisable by the civil Court. Nor was there a plea that the relief, in the terms in which it was couched, could not be granted by that Court.

4. The learned Additional Munsif decreed the suit. On appeal, the learned Additional Civil Judge came to the conclusion that the suit was virtually one for redemption and, as the mortgage money was less than Rs. 500, the matter was cognisable only by the revenue Court. He, therefore, directed the return of the plaint to the proper Court, Against this order the plaintiff has come to this Court in first appeal.

5. It is contended by the learned Counsel for the appellant that the suit was cognisable by the civil Court. It is not denied that a prayer for accounting could be made within the meaning of Section 33 of the Act. If, along with the prayer for accounting, there was another prayer, which went beyond the scope of the section, the learned Counsel argues, it was not open to the Court to refuse him the prayer which fell within its purview.

6. The learned Counsel for the appellant has, we might note, made it clear that he will be satisfied if the decree for accounting, granted by the learned Additional Munsif, stands.

7. He has also invited our attention to Section 7, U.P. Debt Redemption Act (Act No. XIII [13] of 1940), which says:

Notwithstanding the terms of any contract regarding the date or dates on which a loan shall become due, a suit to which this Act applies for the redemption of a mortgage or for accounts may be instituted by a debtor at any time after the commencement of this Act.

8. We are of opinion that this section is of no avail to the appellant. It was enacted with the object of obviating the mischief of those mortgages which contained terms either postponing or clogging redemption.

9. The learned Counsel for the respondents, however, seeks to support the order under appeal on the ground that, once the prayer for possession was joined to the prayer for accounting, the suit was virtually a suit for redemption, within the meaning of Section 12 of the Act, in as much as all redemption presupposes, in the ultimate analysis, accounting and possession.

10. The learned Counsel is, perhaps, right. But if the Legislature clearly enacted two sections, one for redemption and the other for accounting, it is open to a party to bring an action under one of the two sections. If he is 1 entitled to a relief under that section, the Court is bound to grant it. If he joins another relief to which he is not so entitled, the Court can decline that relief.

11. We are, therefore, of opinion that the plaintiff was entitled to claim accounting, within the meaning of Section 33, Agriculturists' Relief Act, and was not entitled to the relief for possession.

12. The learned Additional Civil Judge has disposed of the case on this preliminary point and it is, therefore, necessary to send it back to him for decision according to law.

13. We allow the appeal set aside the order of the Court below and send the case back to that Court with the direction to restore it to its original number and proceed to hear and decide it according to law. We think this is a fit case in which the parties should bear their own costs.


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