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Sheoram Apadeo Vs. Seth Phul Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in6Ind.Cas.164
AppellantSheoram Apadeo
RespondentSeth Phul Chand and anr.
Excerpt:
bundilkhand encumbered estates act (i of 1903), section 10(b) - mortgage debt--decision of special judge--fresh suit, maintainability of--civil court--jurisdiction. - - it is undoubtedly a suit in respect of a private debt to which the proprietor was subject and with which his property was encumbered and in view of the prohibition of the legislature we think that the suit, out of which this appeal has arisen, is clearly not maintainable......the answer to the suit is that the subject-matter of it was considered and decided by the special judge appointed under the bundilkhand encumbered estates act, act no. i of 1903. the mortgagors took the benefit of that act and in the proceedings which followed their application, the question whether the full consideration of the two mortgages in question was paid was considered. this matter was determined by the special judge in favour of the mortgagees. on appeal to the special commissioner, the decision of the special judge was affirmed. on the basis of the decision so arrived at, the encumbrances upon the estate of the plaintiffs were determined under the provisions of the act in question. the plaintiffs now bring this suit, despite the decision of the special judge, to.....
Judgment:

1. The suit, out of which; this appeal has arisen, was brought by the plaintiffs to recover a sum of Rs. 4,864-5-0 with interest at 12 annas per cent. per mensem being portion of moneys secured by two mort gages of the 18th of April 1903, which the plaintiffs allege was not received by the mortgagors. The answer to the suit is that the subject-matter of it was considered and decided by the Special Judge appointed under the Bundilkhand Encumbered Estates Act, Act No. I of 1903. The mortgagors took the benefit of that Act and in the proceedings which followed their application, the question whether the full consideration of the two mortgages in question was paid was considered. This matter was determined by the Special Judge in favour of the mortgagees. On appeal to the Special Commissioner, the decision of the Special Judge was affirmed. On the basis of the decision so arrived at, the encumbrances upon the estate of the plaintiffs were determined under the provisions of the Act in question. The plaintiffs now bring this suit, despite the decision of the Special Judge, to recover the sum with interest which we have stated. They appear to claim this sum by way of damages for breach of contract. The learned Subordinate Judge dismissed the suit on the ground that it was one really to have it declared that the mortgage debt, secured by the deeds of the 18th of April 1903, was not paid to the extent mentioned in the plaint and to recover the same from the mortgagees; that the mortgage debt had been the subject of enquiry and adjudication by the Special Judge under Act I of 1903 and that Section 10 Clause (b) of that Act prohibits the institution of any other proceeding in respect of the mortgage-debt. We think that the decision of the Court below upon this point was correct. Section 10 (l), Clause (a) provides that 'All proceedings pending at the date of the publication in any Civil or Revenue Court in the United Provinces other than the High Court in respect of any private debt to which the proprietor is subject, or with which his immovable property is encumbered, shall be stayed,' and then in Clause (6) it is provided that 'in respect of any such debt, no fresh suit or other proceeding shall, except as hereinafter provided, be instituted in any Civil or Revenue Court in the United Provinces.' The present suit does not come within the exception mentioned in this sub-section. It is undoubtedly a suit in respect of a private debt to which the proprietor was subject and with which his property was encumbered and in view of the prohibition of the legislature we think that the suit, out of which this appeal has arisen, is clearly not maintainable. The view taken by the learned Subordinate Judge is, in our opinion, correct and we dismiss the appeal with costs including fees in this Court on the higher scale.


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