1. This is an application in revision against an order of the learned Additional Civil and Small Cause Court Judge of Morarabad. The only point argued before us is one of jurisdiction.
2. Dhoridhar and others executed a mortgage with possession, with regard to certain zamindari property lying in Tabsil Bisauli of the district of Budaun, in favour of Ramnarain. Das for Rs. 1500 on 16th August 1907. The original parties to the transaction are dead. The plaintiffs are the heirs and representatives of the mortgagors. The defendants are the heirs of the mortgagees.
3. The plaintiff's who represent the mortgagors, made an application in the Court of the Munsif of Chandausi for redemption of the above mortgage under Section 12, U.P. Agriculturists' Relief Act, (Act 27 [XXVII] of 1934). There was a further prayer for the benefits of the U.P. Debt Redemption Act.
4. One of the pleas raised in defence was that the suit should have been instituted in the Court of the Munsif of Budaun within whose jurisdiction lay the property covered by the mortgage.
5. The learned Munsif repelled the plea and held that he bad jurisdiction. He granted a decree for redemption conditional on the payment by the plaintiff of a sum of Rs. 700. The plaintiffs went in appeal and the learned Additional Civil Judge held that they were entitled to an unconditional decree, inasmuch as the entire debt had been wiped out. The learned Judge agreed with the learned Munsif on the question of jurisdiction. The defendant has come to this Court and the only question is, as mentioned above, one of jurisdiction.
6. The learned Counsel argues that on a correct interpretation of the relevant provisions of the Agriculturists' Relief Act, the suit was not cognizable by the Court at Moradabad. It ought to have been instituted within 'the jurisdiction of the Court at Budaun. Section 12, Agriculturists' Relief Act, provides that
an application contemplated by it can be filed before the Court, within whose jurisdiction the property mortgaged or any part of it is situate.
Section 7 provides that
every suit for recovering an unsecured loan...shall be instituted and tried in a Court within the local limits of whose jurisdiction the agriculturist defendant or any of the agriculturist defendants, where there are more than one such defendants, actually and voluntarily resides.
7. There is a further provision that, in case the agriculturist defendant or all the defendants reside outside the limits of the United Provinces of Agra and Oudh
the holding or the landed property of the agriculturist defendant or any of them, if there are more than one such defendants, is situate.
8. A comparison of these sections, the learned Counsel argues, makes it abundantly clear that the Legislature draws a distinction between the forums provided for the different classes of cases. In an action where the debtor is the plaintiff, the forum is different from that in which he is brought to the Court as a defendant. In the former case, the suit lies where the property is situate, in the other class of cases the ordinary rule of law prevails, namely, that the Court in whose jurisdiction the defendants reside, will also have jurisdiction.
9. The learned Counsel for the opposite party, on the other hand, contends that Section 6, U.P. Debt Redemption Act, (Act 13 [XIII] of 1940) which was passed later provides that a suit to which the provisions of that Act apply, can be instituted, amongst other places, where 'the defendant or, if there are more than one, any of the defendants ordinarily resides.'
10. Mr. Shabd Saran, the learned Counsel for the applicant, however, contends that the Agriculturists' Relief Act, which provides different forums for different classes of cases, must, on the principle generalia specialibus non derogant, prevail over the Debt Redemption Act, which makes no such specific provision. It is, however, significant that even the proceedings under the U. P. Agriculturists' Relief Act are governed by the Code of Civil Procedure. Section 27 says that:
The provisions in the Code of Civil Procedure, 1908, in regard to suits shall be followed, so far as they can be made applicable to all proceedings under this Chapter and all orders passed udder this Chapter shall be executed in the manner prescribed for execution of civil Court decrees.
Section 21 of the Code distinctly provides that:
No objection as to the place of suing shall be allowed by any appellate or revisional Court unless such objection was taken in the Court of first instance unless there has been a consequent failure of justice.
11. It is argued that the provisions of the Code of Civil Procedure are held applicable by virtue of Section 7, U.P. Agriculturists' Relief Act, only so far as the primary Court is concerned. They can have no application to the appellate Court. This argument is plausible and a close examination of the relevant provisions of the U.P. Agriculturists' Relief Act, the Debt Redemption Act and the Code of Civil Procedure will reveal its fallacy. There is, in the first place, no specific provision for the procedure to be followed in appeals, and yet there is a section providing for a right of appeal. The intention of the Legislature appears to be that the procedure, provided by the Code of Civil Procedure, should apply. If this interpretation is not permissible, there will be no provision for the procedure in appeal. It is, therefore, obvious that Section 21, Civil P.C. has application even to proceedings under the U.P. Agriculturists' Relief Act or the U.P. Debt Redemption Act.
12. We may mention that the present is not a case where, as in the Full Bench case in Ramesh Chand v. Shayam Lal : AIR1946All34 there was some sort of a conflict between Section 45, U.P. Encumbered Estates Act, a similar special enactment, and the Code of Civil Procedure.
13. The learned Counsel for the opposite party has relied on Ashfaq Ali Beg v. Lalta Prasad : AIR1945All309 . We agree with the learned Judge in the conclusion at which he arrived, although no reasons have been assigned by him for his conclusion. We, therefore, dismiss this application but, under the circumstances of the case, we make no order as to costs.
Harish Chandra J.
14. I agree.