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Mt. Ladli Begum and anr. Vs. Sunder Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 365 of 1947
Judge
Reported inAIR1959All764
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Uttar Pradesh Agriculturists' Relief Act - Sections 33; Deb Law
AppellantMt. Ladli Begum and anr.
RespondentSunder Lal and anr.
Appellant AdvocateW.A. Khan, Adv.
Respondent AdvocateN.P. Asthana and ;K.B. Asthana, Advs.
DispositionAppeal dismissed
Excerpt:
.....the meaning of the agriculturists' relief act it cannot be said that it is established that the plaintiffs-mortgagees were creditors within the meaning of this act. banamali sen [1953]4scr154 where their lordships have clearly indicated that where a plea of res judicata is founded on general principles of law all that is necessary to establish is that the court which heard and decided the former case was a court of competent jurisdiction; the view of their lordships of the supreme court was that a plea of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction like revenue courts, land acquisition court, administration courts, etc. that there is a principle of res judicata apart from section 11 of the civil procedure..........the contention cannot be upheld. 9. the u. p. agriculturists' relief act makes provision for the relief of agriculturists from indebtedness and it provides for a procedure for the taking of accounts between debtors and creditors in terms of section 33 of the said act. under section 33 sub-section (2) the court concerned after taking necessary accounts, is required to declare the amount which is still payable by the plaintiff to the defendant and has, on the application of the defendant and if the money is payable, to pass a decree in favour of the defendant. under the last proviso to that section an application for execution of the decree passed by the court concerned lies, provided that the difference, if any, between the fee actually paid by the plaintiff on his plaint under.....
Judgment:

Gurtu, J.

1. This is a mortgagors' appeal in a suit for sale on foot of a mortgage deed executed by the mortgagors-defendants in favour of the plaintiffs-mortgagees on the 1st of October, 1928, for a sum of Rs. 15,000.

2. In their plaint the mortgagees have set out the particulars of the mortgage and have shown that amount of mortgage money was Rs. 15,000/-, It is alleged in the plaint that out of the mortgage consideration Rs. 11,500, were left for payment to Lala Ramchander, but out of that Rs. 11,500/-only a sum of Rs. 11,346/4/- was paid and Rs. 40/-was spent in the execution and completion of the acquittance. In this way Rs. 11,386/4/- were paid and the amount which was actually paid has been included in the account. The rest of the mortgage consideration, according to the mortgage deed, was made up in such a way that Rs. 1875/- were paid before the Sub-Registrar, Rs. 1200/- was in respect of other debts and Rs. 1500/-was taken for redeeming some ornaments which had been pledged.

3. Defence was entered and the plea was taken that undue advantage was taken of the straitened circumstances of the contesting defendants and they were therefore compelled to agree to usurious conditions. By paragraph 6 of the additional pleas it was pleaded that as the plaintiff had not upto the date of the plaint returned the pawned ornaments to the contesting defendants, Rs. 1500/- as well as the price of the ornaments should be set off as against the mortgage money. By paragraph 8 it was pleaded that it was agreed upon between the plaintiffs and the contesting defendants that the plaintiffs would give to the contesting defendants Rs. 1875/- at the time of the registration, but after the registration the contesting defendants would return this money to the plaintiffs as interest for 1 1/4 years and that if the contesting defendants paid the mortgage money this money would be allowed credit for and would be set off as against the interest for 1 1/4 years. It was pleaded that in this way the sum of Rs. 1875/-which had been returned to the plaintiffs should be set off as against the mortgage money.

With regard to the amount which was to be paid to Lala Ramchander it was said that a sum of Rs. 153/12/- remained with the plaintiffs. It was stated that the contesting defendants had paid Rs. 1200/- more on the 15th of March 1935, towards interest to the plaintiffs, the receipt whereof has not been given by the plaintiffs and thus this has not been mentioned in the plaint and that the aforesaid amount should also be allowed credit for. By paragraph 11 it was pleaded that the plaintiffs creditors were carrying on money-lending business and were, neither prepared nor had sent annual accounts to the contesting defendants and were not entitled to get any interest and costs.

4. Upon these pleadings the learned civil Judge framed the issues. A request was made to him to first determine issues 1 to 5. The learned Civil Judge acceded to that request and by an order dated the 27th of April, 1942, he held that the issues 1 to 4 could not be gone into again as they had already been determined in a previous proceeding inter, partes under Section 33 of the U. P. Agriculturists' Relief Act. In those proceedings it had been decided that the consideration entered in the mortgage deed was fully established and that Rs. 23,363/8/- were due on foot of the mortgage deed dated the 1st of October 1928 up to the 28th of November, 1939. In regard to the other issues the findings were given by the order dated 5-8-1936.

It was found that the defendants had proved that they were 'agriculturists' according to the Debt Redemption Act, and that interest should be reduced in terms of that Act. It was also found that the claim of the defendants that interest and costs should be disallowed under Section 34 of the Agriculturists' Relief Act was not at all tenable; that the plaintiffs were 'creditors' within the meaning of the Act had not been established; and that therefore the defendants were not entitled to any relief under that section of that Act. It was also found that the Encumbered Estates Act proceedings started by the defendants earlier had been withdrawn prior to the filing of the suit under Section 33 of the Agriculturists Relief Act and that the order permitting the said withdrawal was a proper order.

The learned Judge also held that because of Section 47 of the Encumbered Estates Act he could not question any proceedings of the Special Judge in the present suit. The view of the learned Judge further was that the defendants were estopped from challenging the validity of the order passed in the Encumbered Estates Act proceedings. Finally, thelearned judge applied the provisions of the Debt Redemption Act and found that the sum due on the mortgage was Rs. 22,926/4/- after deduction made under the said Act. Consequently the plaintiffs' suit was decreed for recovery of that sum with costs, and interest pending and future, 4 1/4 per cent. per annum on Rs. 14,886/4/- till, the day fixed for redemption and further interest at 3 per cent. per annum by sale of the property in suit. A preliminary decree was ordered to be framed under order 34, Rule 4, C. P. C. and six months were allowed for redemption.

5. In this appeal by the mortgagors three points were urged. Firstly, it was submitted that the Encumbered Estates Act proceedings had not in fact been withdrawn. Secondly, it was submitted that sufficient opportunity was not afforded to the defendants mortgagors to enable them to establish that the plaintiff-mortgagees were 'creditors' within the meaning of Section 2(7) of the U. P. Agriculturists' Relief Act. Thirdly, it was argued that the finding of the court below that issues 1 to 4 stood disposed of by the judgment in the proceedings inter partes under Section 33 of the Agriculturists' Relief Act was not correct.

6. In regard to the first point it is sufficient to say that nothing has been shown to us suggesting that the statement of fact made by the learned judge that the Encumbered Estates Act proceedings were withdrawn is incorrect.

7. In regard to the second point, though if is conceded that several adjournments were granted in order to enable the defendants-mortgagors to establish that the plaintiffs-mortgagees were 'creditors' within the meaning of the Agriculurists' Relief Act, nonetheless it is contended that further opportunity, when it was refused, should not have been refused. We are satisfied upon a perusal of the relevant applications and orders that sufficient opportunity was made available to the defendants-appellants. We may point out that the plaintiffs' statement which was recorded on the 15th of May, l946, contained a categorical denial that the plaintiffs had any account carried on any regular money-lending business.

It was stated that the plaintiffs carry on a grocer's shop and accounts of such shop were maintained and that under orders of the court the account-books for four years relating thereto had been filed. In view of this categorical statement, and in view of the fact that the onus was clearly on the defendants to establish that the plaintiffs were 'creditors' within the meaning of the Agriculturists' Relief Act it cannot be said that it is established that the plaintiffs-mortgagees were creditors within the meaning of this Act. In point of fact it is not suggested that there is any material on record on the basis of which a finding could have been recorded that the plaintiffs-mortgagees were 'creditors'.

8. Coming to the last point, it is not disputed that mortgagors appellants instituted proceedings under Section 33 of the U. P. Agriculturists' Relief Act for accounting, in the court of the City Munsif, Rareilly, and that those proceedings ended by a judgment of the learned City Munsif dated the 26th of November, 1940. The issues raised in that case were:

1. What amount is due to the defendants (mortgagees) as against the plaintiffs (mortgagors) on the basis of the mortgage deed dated the 1st of October, 1928?

2. To what relief, if any, are the plaintiffs entitled?

The learned Munsif in dealing with these issues examined the very points which were raised in the present suit and on which present issues 1 to 4 framed. Then the learned Munsif came to the conclusion that Rs. 23,363/8/- were due on the mortgagors in respect of the mortgage deed dated 1st October, 1928, up to the 28th of November, 1939 and a declaration was accordingly made by the learned Munsif to that effect. It is contended before us that despite that decision given, issues 1 to 4 of the present suit could still have been gone into and that the learned Munsif was wrong in refusing to adjudicate upon those issues and to hold that consideration thereof was barred on the principle of res judicata. In our view the contention cannot be upheld.

9. The U. P. Agriculturists' Relief Act makes provision for the relief of agriculturists from indebtedness and it provides for a procedure for the taking of accounts between debtors and creditors in terms of Section 33 of the said Act. Under Section 33 Sub-section (2) the court concerned after taking necessary accounts, is required to declare the amount which is still payable by the plaintiff to the defendant and has, on the application of the defendant and if the money is payable, to pass a decree in favour of the defendant. Under the last proviso to that section an application for execution of the decree passed by the Court concerned lies, provided that the difference, if any, between the fee actually paid by the plaintiff on his plaint under Sub-section (1) and the fee which would be payable under the Court Fees Act, 1870, on the plaint in a suit for the recovery of the amount decreed, has been paid up. It will thus be seen that it is open to the mortgagee decree-holder, if he so chooses, to convert the declaratory decree into a decree for recovery of the decreed amount. It will thus be observed that Section 33 of the Agriculturists' Relief Act provides an entirely new procedure to deal with agricultural indebtedness and the Court under Section 33 has been made into a special and exclusive forum for the adjudication between creditors and agriculturist debtors. A special type of jurisdiction has been conferred, and the court concerned, it is evident, has been made a court of exclusive jurisdiction for the adjudication envisaged by Section 63 of the U. P. Agriculturists' Relief Act. It is not suggested before us that the learned Munsif was not the court within the meaning of Section 33 of the Agriculturists' Relief Act, competent to try the suit which was filed before him by the mortgagors under Section 33.

Inasmuch as the decision of the learned Munsif under Section 33 of the Agriculturists' Relief Act is a decision of a court of exclusive and competent jurisdiction, in our view a readjudication of the matters which were decided by the learned Munsif is barred by the principle of res judicata. The court below has rightly held that though Section 11 of the Civil Procedure Code does not in terms apply, nevertheless the principles of res judicata are applicable in this case. We are unable to accept the contention advanced by learned counsel for the appellants that the court below was wrong in coming to this conclusion. The view taken by the court below is fully supported by a judgment of their Lordships of the Supreme Court in Raj Lakshmi Dasi v. Banamali Sen : [1953]4SCR154 where their Lordships have clearly indicated that where a plea of res judicata is founded on general principles of law all that is necessary to establish is that the Court which heard and decided the former case was a court of competent jurisdiction; and that it is not necessary in such a case to further prove that it has jurisdiction to hear the latter suit. The view of their Lordships of the Supreme Court was that a plea of res judicata on general principles can be successfully taken in respect of judgments of Courts of exclusive jurisdiction like revenue courts, land acquisition court, administration courts, etc. for these Courts are not entitled to try a regular suit and they only exercise special jurisdiction conferred on them by the statute.

10. It has not been suggested to us that the suit initiated by the mortgagors under Section 33 of the Agriculturists' Relief Act was a suit which could have been filed in any other manner or in any other civil court. No suit for accounts simpliciter on the date when the U. P. Agriculturists' Relief Act was enforced could have been filed in a civil court in a case where the account claimed under a mortgage deed unless the mortgage deed was enforced for the recovery of the amount due.

The U. P. Agriculturists' Relief Act created the special right for the first time and the Act provided its own procedure and created courts of exclusive jurisdiction which had to deal with the suits under Section 33 of that Act. That there is a principle of res judicata apart from Section 11 of the Civil Procedure Code is well recognised and the courts have gone to the extent of applying the principle of res judicata to adjudications by tribunals in contradistinction to civil courts. In the case reported in Burn and Co. v. Their Employees : (1957)ILLJ226SC there had been a previous decision under the Industrial Disputes Act by the Industrial Court and when the matter was sought to be raised for a second time under the same Act, it was held that the principle of res judicata operated to shut out any further inquiry.

11. In view of those decisions of their Lordships of the Supreme Court which have been cited above, it is not really necessary to refer to any other authority. But we might in passing refer to the case of Sheoparsan Singh v. Ramnandan Prasad Narayan Singh, ILR 43 Cal 694: (AIR 1916 PC 78) where their Lordships of the Privy Council indicate that the rule of res fudicata in England was founded on ancient precedent and is dictated by a wisdom which is for all time. They referred to 6 Coke's Institutes 9-A. It is interesting to note that their Lordships examined some of our own ancient texts and found that the plea of a former judgment was also well-known to our own ancient system of law.

12. In the face of these authorities we think there is no point in examining one or two other cases which have been put before us by learned counsel for the appellants who endeavoured to press the point that a case had to be brought in within the four corners of Section 11 of the Civil Procedure Code before a plea of res judicata could be entertained. Those cases which were cited are not cases where the court was a court of exclusive jurisdiction.

13. We are of the view that the court below has correctly concluded that the inquiry in regard to issues Nos. 1 to 4 was barred by the principle of res judicata. The binding force of the judgment delivered by the court below under Section 33 of Agriculturists' Relief Act depends upon general principles of law and not upon Section 11 of the Civil Procedure Code and such a decision does operate as res judicata even though the learned Munsif was not competent to try the present subsequent suit. No other point was urged. The resuit therefore is that we dismiss this appeal withcosts.


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