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Baijnath and ors. Vs. Dulare - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All379(2); 39Ind.Cas.582
AppellantBaijnath and ors.
RespondentDulare
Excerpt:
bundelkhand encumbered estates act (i of 1903), sections 12, 18, operation of - mortgagor, right of, to recover mortgaged property after discharge of debt--special judge, power of. - .....or more years ago. it is admitted that the defendants never put forward their claim before the special judge after an application had been made by the proprietor under the provisions of act i of 1903. section 12 of that act states that 'every claim against the proprietor in respect of a private debt shall, unless made within the time and in the manner required by this act, be deemed for all purposes and on all occasions to have been duly discharged.' it seems to us that the provisions of this section mean that the debt secured by the mortgage must be deemed to be discharged, and if there is no longer any debt, then the plaintiff is entitled to recover the mortgaged property. it is said that his only remedy was under section 18 to apply to the special judge. we cannot agree to this.....
Judgment:

1. We see no reason to differ from the view taken by the learned Judge of this Court. We must take it for the purposes of this appeal that the defendants were in possession of the land sought to be recovered as mortgagees under a mortgage made some thirty or more years ago. It is admitted that the defendants never put forward their claim before the Special Judge after an application had been made by the proprietor under the provisions of Act I of 1903. Section 12 of that Act states that 'every claim against the proprietor in respect of a private debt shall, unless made within the time and in the manner required by this Act, be deemed for all purposes and on all occasions to have been duly discharged.' It seems to us that the provisions of this section mean that the debt secured by the mortgage must be deemed to be discharged, and if there is no longer any debt, then the plaintiff is entitled to recover the mortgaged property. It is said that his only remedy was under Section 18 to apply to the Special Judge. We cannot agree to this contention. That merely empowers the Special Judge to eject a person whose debt is deemed to be discharged under Section 12, but does not in any way take away from the ordinary right of coming to the Civil Courts. It was further contended that the proprietor had omitted to state the particulars of the debt due under this mortgage. Looking at the written statements filed by the defendants, we find that it was never pleaded that this debt had been omitted from the statement. The notification having issued under Section 9 the presumption would be that everything had been properly done. We dismiss the appeal with costs.


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