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Lakhan Singh and anr. Vs. Babu Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1926All65
AppellantLakhan Singh and anr.
RespondentBabu Ram
Excerpt:
.....that the account books relied upon by the mortgagee were absolutely unsatisfactory and unreliable. he criticised them as being no better than waste paper. the learned subordinate judge had not disposed of the matter on a preliminary point, but had expressed his opinion clearly, even though he might have been wrong, and had disposed of the objections raised. when the learned subordinate judge was not satisfied that the accounts filed by the mortgagee were reliable and satisfactory, he was bound to accept the plaintiffs' accounts (which were based on the patwari's papers) unless there was something in the judgment or decree to the contrary. it has not power to remand the cases when the first court has already expressed its opinion clearly on the reliability of the account books..........disposed of the objections raised. when the learned subordinate judge was not satisfied that the accounts filed by the mortgagee were reliable and satisfactory, he was bound to accept the plaintiffs' accounts (which were based on the patwari's papers) unless there was something in the judgment or decree to the contrary. the lower appellate court, if it had it self gone into the question, may have come to the conclusion that the opinion of the learned subordinate judge was quite wrong, but that has not been done at all. it has simply said that the court of first instance has not gone properly into the accounts and has decided the matter summarily. we cannot accept that to be correct. it was the duty of the lower appellate court to go into the question of accounts itself and find what.....
Judgment:

Sulaiman, J.

1. This is a plaintiffs' appeal arising out of an order making a decree final. The original suit was one for redemption and it was decreed with the direction that the accounts would have to be taken before the preparation of the final decree. Certain account books have been filed by the mortgagee while the suit was pending and certain other statements of accounts were filed when the proceedings relating to the preparation of the final decree were started. The plaintiffs also filed copies of the patwari's papers. The learned Subordinate Judge came to the conclusion that the account books relied upon by the mortgagee were absolutely unsatisfactory and unreliable. He criticised them as being no better than waste paper. He thought that the mortgagee had not kept complete or clear accounts at all. He found that the mortgagee had not placed before the Court any proper account showing the actual collections made by him. Then he held that in the absence of proper accounts he could not but accept the accounts as filed by the decree-holder which were prepared on the basis of the patwari's papers. Ha accordingly passed a decree in favour of the plaintiffs for a sum of Rs. 3,585-1-10 as being the amount due as soon as the mortgage-money was paid off. On appeal by he mortgagee to the lower appellate Court the lower appellate Court thought that the Court of first instance had not gone properly into the accounts and decided the case in the summary and unsatisfactory manner. It felt that it was unjust to the mortgagee that accounts should be prepared on the basis of the gross rental and it accordingly directed that the accounts should be gone into again and the objections advanced by the mortgagee should be decided after framing issues as regards them.

2. We are of opinion that the order of the lower appellate Court cannot be upheld. The learned Subordinate Judge had not disposed of the matter on a preliminary point, but had expressed his opinion clearly, even though he might have been wrong, and had disposed of the objections raised. When the learned Subordinate Judge was not satisfied that the accounts filed by the mortgagee were reliable and satisfactory, he was bound to accept the plaintiffs' accounts (which were based on the patwari's papers) unless there was something in the judgment or decree to the contrary. The lower appellate Court, if it had it self gone into the question, may have come to the conclusion that the opinion of the learned Subordinate Judge was quite wrong, but that has not been done at all. It has simply said that the Court of first instance has not gone properly into the accounts and has decided the matter summarily. We cannot accept that to be correct. It was the duty of the lower appellate Court to go into the question of accounts itself and find what amount was actually due to the plaintiffs on the evidence that was before it. It has not power to remand the cases when the first Court has already expressed its opinion clearly on the reliability of the account books produced by the mortgagee. It would not be fair to the first Court to ask it to re-consider its opinion and decisions. We, therefore, think that this appeal must be allowed. We set aside the order of the lower appellate Court and remand the case to that Court for disposal according to law, Costs of this Court will be costs in the cause including fees on the higher scale.

Daniels, J.

3. I concur. I should like to add a word of caution to the lower appellate Court against remanding cases for re-trial when the trial Court has really |disposed of them on the merits. In such case, if the appellate Court considers that it ought to have a finding on some issue or issues which the trial Court has not decided, it can always remit issues under Order 41, Rule 25; but it is not legitimate for an appellate Court to send back the case from its file merely because it differs radically from the conclusions of the Court below on the facts or because it considers that the discussion of the evidence in the trial Court's judgment is inadequate.


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