Skip to content


Thakur Kishun Chand Singh Vs. Munshi Makund Sarup and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All308
AppellantThakur Kishun Chand Singh
RespondentMunshi Makund Sarup and ors.
Excerpt:
- - and (3) that in case kishun chand singh and others failed to deliver possession they would be liable to pay rs. 3. it appears that the applicant kishun chand singh and his co-sharers failed to deliver possession and pay the stipulated amount. makund sarup made an application to the special judge for a review of his order but he was unsuccessful. 5. the judgment clearly mentions the fact that kishun chand singh had acquired an interest in the equity of redemption. it is well known that this court in disposing of revisions does not always give a detailed statement of facts......his share to different persons and now one half of ghafur bakhsh's share is owned by kishun chand singh and the remaining one half by other persons. three-fourth of the equity of redemption was sold under various decrees from time to time and is now owned by th. kishun chand singh and some other persons who are no parties to this litigation. the result is that three-fifth of the mortgagee rights are now owned by makund sarup and the remaining two-fifth by kishun chand singh and others. the equity of redemption to the extent of three-fourth is owned by kishun chand singh and his brother. thakur manik singh and the remaining one-fourth is still owned by the original mortgagors. on 21st october 1924 kishun chand singh and others, on the one side, and m. makund sarup, on the other,.....
Judgment:
ORDER

Mohammad Ismail, J.

1. This is an application under Order 47, Rule 1, Civil P.C., for a review of a judgment in Civil Revn. No. 25 of 1937, Mukand Sarup v. Krishna Chandra, reported in : AIR1938All86 delivered by a Bench of this Court, consisting of Niamatullah J. and myself. In consequence of the retirement of Niamatullah J. on 7th December 1937, I alone heard the application as provided by Order 47, Rule 5, Civil P.C.

2. In order to appreciate the argument addressed to me in support of the application it is necessary to state a few facts that led to the revision. Syed Haidar Shah and two others executed a usufructuary mortgage deed in favour of M. Makund Sarup and Maulvi Ghafur Bakhsh on 17th December 1904 in respect of four villages. The share of Makund Sarup was three-fifth and of Ghafur Bakhsh two-fifth in the mortgage security. Subsequently Ghafur Bakhsh transferred his share to different persons and now one half of Ghafur Bakhsh's share is owned by Kishun Chand Singh and the remaining one half by other persons. Three-fourth of the equity of redemption was sold under various decrees from time to time and is now owned by Th. Kishun Chand Singh and some other persons who are no parties to this litigation. The result is that three-fifth of the mortgagee rights are now owned by Makund Sarup and the remaining two-fifth by Kishun Chand Singh and others. The equity of redemption to the extent of three-fourth is owned by Kishun Chand Singh and his brother. Thakur Manik Singh and the remaining one-fourth is still owned by the original mortgagors. On 21st October 1924 Kishun Chand Singh and others, on the one side, and M. Makund Sarup, on the other, entered into an agreement which provided : (1) that Makund Sarup would be put in possession of certain villages in lieu of his three-fifth share in the mortgagee rights from the beginning of 1333 F; (2) that Kishun Chand Singh and others would pay Rs. 25,000 to M. Makund Sarup as profits for 1332 F; and (3) that in case Kishun Chand Singh and others failed to deliver possession they would be liable to pay Rs. 4000 as damages.

3. It appears that the applicant Kishun Chand Singh and his co-sharers failed to deliver possession and pay the stipulated amount. Makund Sarup thereupon brought a suit in 1928 against Kishun Chand Singh and others for the enforcement of the terms agreed upon under the deed of 21st October 1924. This suit for several reasons which need not be commented upon is still pending. Kishun Chand Singh alone made an application under Section 4, Encumbered Estates Act, before the Collector and in the list of debts required to be filed by an applicant under the section he mentioned the mortgage of 1904 as he had acquired a fraction of the mortgagor's right as stated above. The Collector forwarded Kishun Chand Singh's application to the Special Judge and the learned Special Judge on the application of Kishun Chand Singh stayed the proceedings in the suit instituted by Makund Sarup for recovery of possession and mesne profits, etc. Makund Sarup made an application to the Special Judge for a review of his order but he was unsuccessful. Against the order of stay passed by the Special Judge Makund Sarup came to this Court in revision which was heard by Niamatullah J. and myself. Under our order dated 30th September 1937 we set aside the order of the Court below with respect to two reliefs : (1) for possession of immovable property; and (2) for recovery of mesne profits. The applicant has now made this application for a review of the aforesaid order.

4. Learned Counsel for the applicant has argued that there is an error apparent on the face of the record inasmuch as the judgment does not mention that the applicant had acquired a fraction of the equity of redemption and as such had become mortgagor to the extent of his share in the equity of redemption. It is contended that under Section 7, Encumbered Estates Act, any suit in respect of a debt to which a landlord is subject or with which his immovable property is encumbered shall be stayed. Although the suit out of which revision No. 25 of 1937 arose is ostensibly a suit between two sets of mortgagees, it is urged that in fact it is a suit between the mortgagee on the one side and one of the mortgagors on the other. In the event of a decree being passed in favour of the plaintiff Makund Sarup the result will be that the plaintiff will be placed in possession of the mortgaged property and will recover the debt to the extent of interest due to him from the usufruct of the mortgaged property. It is contended therefore that the suit is in effect in respect of a debt and must accordingly be stayed. It is further argued that the Bench disposing of the application was apparently under the' impression that the applicant was only a mortgagee and not one of the mortgagors. The ground for this suggestion is that in the body of the judgment we stated : 'Under a deed dated 17th August 1904 executed by persons who are no parties to this litigation'. From this passage it is inferred that the Bench was not cognisant of the fact that the applicant Kishun Chand Singh had acquired an interest in the equity of redemption. The argument of learned Counsel assumes many things for which to my mind there is no justification. It assumes that counsel who represented Kishun Chand Singh in the revision did not place the judgment of the Court below before us.

5. The judgment clearly mentions the fact that Kishun Chand Singh had acquired an interest in the equity of redemption. I have no reason to think that such was the case. The advocate appearing for Kishun Chand Singh in the revision is a lawyer of experience and standing and it must be assumed that he must have brought this important fact to our notice. After a lapse of so many months it is impossible for me to say on what lines the revision was argued. The affidavit filed by the applicant in support of his application is also silent on the subject. The only ground for this suggestion is that our judgment does not expressly mention this matter. It is well known that this Court in disposing of revisions does not always give a detailed statement of facts. The sentence quoted above obviously refers to the original mortgagors' who in fact are no parties to this suit. It is again assumed that if this matter had been placed in the forefront of the argument addressed to us the result of the revision would have been in favour of the applicant. This again is an assumption which is scarcely justified. The suit of Makund Sarup is for the enforcement of the terms of the agreement of 1924 which was executed to adjust the rights of the two sets of mortgagees who were jointly interested in the property mortgaged. It is conceded that Section 7, Encumbered Estates Act will have no application to such a suit. The view taken by us was that a suit of this nature is not covered by the aforesaid section.

6. Whatever may be the consequence of the decree that may ultimately be passed in the suit, it cannot be denied that the plain, tiff in the suit does not aim at enforcing his rights under the mortgage deed of 1904. In case a decree is passed in favour of the plaintiff it will in no way affect the application of Kishun Chand Singh under the Encumbered Estates Act. The Special Judge will still have the power to pass an order under Section 18 of the Act and dispossess the applicant from the mortgaged property The view expressed by us in our judgment is in accord with the view taken in Champa Dovi v. Mt. Asa Devi : AIR1938All8 . In this case a Bench of this Court has held that Section 7 has no application to suits for possession of immovable property nor does it apply to a relief for recovery of mesne profits which are in the nature of unliquidated damages. Even if it be assumed that our view of law is incorrect it could be rectified only by a Court of Appeal if an appeal were competent from our order under the law. It is not a matter which comes within the purview of Order 47, Rule 1 and is in no way a mistake or error apparent on the face of the record. An erroneous view of the law on a debatable point or a wrong exposition of the law or a wrong application of the law cannot be considered a mistake or (error on the face of the record. In Bala Prasad v. Bal Krishan : AIR1933All274 a Bench of this Court held that no application for a review of judgment on the ground of an alleged error of law is maintainable under Order 47, Rule 1 and that an error does not come under the words 'error apparent on the face of the record' in Order 47, Rule 1. In Mohammad Ismail v. Janki Saran Singh (1932) 19 A.I.R. Pat. 275 a similar view was taken and it was held that a Judge proceeded upon faulty logic for coining to his conclusion and in any event was wrong in law is not an argument which can be used to support an application for review.

7. I am by no means convinced that there is any error of law in the view we have expressed in our judgment. Learned Counsel for the applicant has very properly not addressed me on the merits of the case and I have no intention of discussing the question involved in the application for revision again. I have made a passing reference to the point that we were called upon to decide in the revision merely to show that it is not a case in which an application for a review can be legally entertained. The nature of a suit ordinarily is determined by the plaint and as I have stated above the reliefs claimed in the plaint were based on a contract between the two parties to an agreement. If this application is admitted it will amount to a re-hearing of the revision, which is not contemplated by Order 47, Rule 1. After giving very careful consideration to the argument of learned Counsel for the applicant I have no hesitation in holding that it is not a fit case in which the application for review should be admitted. It is accordingly rejected with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //