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Baijnath Marwari Vs. Ganesh Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1940All519
AppellantBaijnath Marwari
RespondentGanesh Singh and ors.
Excerpt:
- - i am entirely unable to accept this contention because i fail to see how the word 'discovery' in order 47, rule 1 can possibly apply to the facts mentioned above. it assumes that the special judge would have granted pendente lite and future interest and that he failed to consider the question of interest merely by inadvertence. it may well be on the other hand, as pointed out by the court below, that the special judge was not prepared to grant any interest because the applicant had for a long time been in possession of the property......under section 14, encumbered estates act, the special judge did not award him any pendente lite or future interest. the decree was passed on 28th november 1938. subsequently on 16th may 1939, the applicant was dispossessed by the collector purporting to act under section 35, encumbered estates act. the applicant who had not been granted any interest in the decree and who has now been dispossessed of the property made an application for review of the decree under section 14, encumbered estates act. that application has been rejected; hence the present application in revision.2. it has been contended on behalf of the applicant that the dispossession of the applicant by the collector was a new and important matter which was not within the knowledge of the applicant at the time when.....
Judgment:
ORDER

Mulla, J.

1. This is an application in revision under Section 115, Civil P.C. It arises out of a proceeding under the Encumbered Estates Act. The applicant here was one of the creditors in the proceeding which was instituted at the instance of the opposite party, Ganesh Singh. A decree for a certain amount was passed in favour of the appellant who was in possession of certain properties under a mortgage. The mortgage deed provided for interest at a certain rate but in passing the decree in favour of the applicant under Section 14, Encumbered Estates Act, the Special Judge did not award him any pendente lite or future interest. The decree was passed on 28th November 1938. Subsequently on 16th May 1939, the applicant was dispossessed by the Collector purporting to act under Section 35, Encumbered Estates Act. The applicant who had not been granted any interest in the decree and who has now been dispossessed of the property made an application for review of the decree under Section 14, Encumbered Estates Act. That application has been rejected; hence the present application in revision.

2. It has been contended on behalf of the applicant that the dispossession of the applicant by the Collector was a new and important matter which was not within the knowledge of the applicant at the time when the decree in question was passed and hence it is argued that the applicant was entitled to have the decree reviewed. I am entirely unable to accept this contention because I fail to see how the word 'discovery' in Order 47, Rule 1 can possibly apply to the facts mentioned above. The dispossession of the applicant by the Collector may be a new and important matter or fact but it certainly cannot be said to be a discovery made by the applicant of a fact which was not within his knowledge when the decree in question was passed. Looking at the facts from another point of view, it might pertinently be asked if the applicant could reasonably have applied for a review of the decree in question if he had been dispossessed not by the Collector under Sec. 35, Encumbered Estates Act, but by some other trespasser. Could he have gone to the Court after being thus forcibly ousted and said with any show of reason that his ouster by a trespasser amounted to a discovery of some new and important matter which was not within his knowledge when the decree was made and hence he was entitled to relief. In my judgment the answer is obviously in the negative.

3. Then it is contended that the omission on the part of the Special Judge to grant pendente lite and future interest might be taken to be only a mistake or error apparent on the face of the record. This contention also has little force to my mind. It assumes that the Special Judge would have granted pendente lite and future interest and that he failed to consider the question of interest merely by inadvertence. It may well be on the other hand, as pointed out by the Court below, that the Special Judge was not prepared to grant any interest because the applicant had for a long time been in possession of the property. It is not possible to hold definitely that the Special Judge made a mistake or error when he refused to allow pendente lite and future interest to the applicant. It was also contended that the Special Judge was bound under Section 14, Encumbered Estates Act, to award pendente lite and future interest to the applicant but upon a careful perusal of the language of Section 14, Sub-section (7) which is not very happily drafted I am unable to hold that the hands of the Special Judge dealing with a case under the Encumbered Estates Act have been absolutely fettered by the Legislature and that the question of awarding pendente lite and future interest is not merely a matter of discretion as it admittedly is in ordinary civil suits. I do not see any reason why the Legislature should have made any distinction between ordinary civil suits and proceedings under the Encumbered Estates Act. If a civil Judge dealing with an ordinary civil suit may or may not allow pendente lite and future interest as the circumstances of the case demand, there is no reason why he should be deemed to be bound under the law to award pendente lite and future interest in a proceeding under the Encumbered Estates Act. The result, therefore, is that I see no force in this application and dismiss it with costs.


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