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Budhu Pandey Vs. Raj Bahadur Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1948All311
AppellantBudhu Pandey
RespondentRaj Bahadur Lal
Excerpt:
.....from the usufruct of the..........this revision which came up for hearing before my brother braund. he referred the case to a full bench for decision of the first point as, in his view, that point raised a question of considerable difficulty. when the matter came up before the full bench learned counsel for the opposite party brought it to the notice of the full bench that he did not desire to rely on this point of law and was content to defend this revision on the other point which had been decided in his favour. the full bench, therefore, sent the case back for decision by a learned single judge. the case has now come up before me for decision.4. the only point raised on behalf of the defendant-applicant is that the court below erred in going behind the decree passed in the year 1911. his contention is that the.....
Judgment:
ORDER

Malik, J.

1. This is a revision under Section 115, Civil P.C., filed by Budhu Pandey, defendant-applicant. Raj Bahadur Lal, plaintiff-respondent, had filed an application under Section 12, Agriculturists' Relief Act, for the redemption of a mortgage dated 13-7-1928. The plaintiff's allegations were that he was not liable to pay anything towards redemption and the mortgage must be deemed to have been satisfied.

2. On 15-6-1900, Raj Bahadur Lal's father had executed a simple mortgage for Rs. 6do/- in favour of Budhu Pande and had mortgaged certain zamindari properties. Budhu Pandey filed a suit for sale on the basis of this mortgage and obtained a decree. This was suit No. 193 of 1911. The decree was for Rs. 1,193/2/-. In execution of the decree the whole d the mortgaged property was sold but only Rs. 200 was realized. A personal decree under Order 34, Rule 6, Civil P.C. was passed on 6-8-1921. In the year 1928, Raj Bahadur Lal's mother paid Rs. 300 in cash towards part satisfaction of the decree and for the balance remaining due i.e., Rs. 1378, as he was a minor, his mother as his guardian, executed a usufructuary mortgage on 18-7-1928 and put the mortgagee in possession of five plots measuring about four acres in village Dala. The plaintiff's contention was that by reason of Section 21, Debt Redemption Act, it must be held that nothing was due on 13-7-1928 when the mortgage deed was executed for Rs. 1378. Section 21, Debt Redemption Act provides that where in a suit based on a loan secured by a first mortgage a decree for sale has been executed and the net proceeds of the sale of the mortgaged property are found insufficient to pay the amount due to the plaintiff or to the defendant, as the case may be, no decree shall be passed for the balance due to such plaintiff or defendant, as the case may be, and if any decree for such balance has been passed before the commencement of this Act, it shall be deemed to have been satisfied.

3. The other point taken by the plaintiff was that even if Section 21, Debt Redemption Act, is not applicable, the mortgage amount has been satisfied from the usufruct of the property. The Court below has held on this latter point in favour of the plaintiff and has given him a decree for redemption without payment of any sum. The defendant filed this revision which came up for hearing before my brother Braund. He referred the case to a Full Bench for decision of the first point as, in his view, that point raised a question of considerable difficulty. When the matter came up before the Full Bench learned Counsel for the opposite party brought it to the notice of the Full Bench that he did not desire to rely on this point of law and was content to defend this revision on the other point which had been decided in his favour. The Full Bench, therefore, sent the case back for decision by a learned single Judge. The case has now come up before me for decision.

4. The only point raised on behalf of the defendant-applicant is that the Court below erred in going behind the decree passed in the year 1911. His contention is that the proviso to Section 9, Debt Redemption Act, applies and it must be held that the amount of interest due on the mortgage was converted into principal at a statement of account prepared before 1-1-1917, Learned Counsel has urged that as the proviso to Section 9, Debt Redemption Act, does not contain the words 'statement or settlement of accounts by the parties', the words 'statement or settlement of accounts' are wide enough to include a case where the amount due is ascertained under the decree. This argument does not appeal to me for two reasons. Firstly by this decree of the year 1911 the accumulated interest was not turned into principal, and secondly the decree cannot be called either a statement OB settlement of accounts. The words, 'statement, or settlement of accounts' have a technical meaning in the commercial world and they contemplate an action by the parties themselves r their duly authorised agents. A decree on the other hand is an order by the Court and does not depend for its validity on the consent of the parties. This question was considered by a Division Bench of this Court. Though the observations made in that case, as learned Counsel points out, may be obiter, but as I am of the same opinion I do not see why I should not rely on that decision. In Hira Singh v. Bishambar Nath 29 A.I.R. 1942 All. 438 a Bench of this Court held:

The words statement or settlement of accounts or by any contract made in the course of the transactions' signify that all these things must be by act of parties and not under any decree of Court.

The Bench relied on a decision of the Bombay High Court in Mareppa v. Gundo Annaji 5 A.I.R. 1918 Bom. 95,

5. This revision has, therefore, no force and is dismissed with costs.


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