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Musammat Kampa Devi Vs. Kishori Lal and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All90; 55Ind.Cas.981
AppellantMusammat Kampa Devi
RespondentKishori Lal and ors.
Excerpt:
transfer of property (validation) act (xxvi of 1917), section 3 - review granted by appellate court, effect of--former court, meaning of. - - the order itself is headed as being an order in a miscellaneous case and the learned district judge begins his judgment by describing the matter before him as an application for review of judgment under act xxvi of 1917. he is certainly wrong there, as the application for review of judgment had been granted by his predecessor on the 27th april 1918. what he bad before him was the appeal itself for decision on merits and on any plea that might be raised before him by either of the parties. the position then was that the trial court bad found in favour of the plaintiffs on every point except as regards the formal execution of the deed of mortgage......the question turns on the wording of section 3, proviso 3 of act xxvi of 1917. when the learned district judge, by his order of april the 27th, 1918, granted the plaintiff's application for review, the plaintiff's appeal against the decree of the trial court dismissing his claim for a decree for sale on the mortgage, and granting him only a simple money-decree, became once more a pending appeal on the file of the district judge of meerut -we are not at all certain from the form of the order before us that this fact was fully realised in the court below. the order itself is headed as being an order in a miscellaneous case and the learned district judge begins his judgment by describing the matter before him as an application for review of judgment under act xxvi of 1917. he is.....
Judgment:

1. The learned District Judge was, in our opinion, mistaken when, at the conclusion of his judgment, he held that he was bound by the finding arrived at in the trial Court, that is to say, by the Court of first instance, on the question of the consideration for the mortgage-deed in suit. The question turns on the wording of Section 3, proviso 3 of Act XXVI of 1917. When the learned District Judge, by his order of April the 27th, 1918, granted the plaintiff's application for review, the plaintiff's appeal against the decree of the trial Court dismissing his claim for a decree for sale on the mortgage, and granting him only a simple money-decree, became once more a pending appeal on the file of the District Judge of Meerut -We are not at all certain from the form of the order before us that this fact was fully realised in the Court below. The order itself is headed as being an order in a miscellaneous case and the learned District Judge begins his judgment by describing the matter before him as an application for review of judgment under Act XXVI of 1917. He is certainly wrong there, as the application for review of judgment had been granted by his predecessor on the 27th April 1918. What he bad before him was the appeal itself for decision on merits and on any plea that might be raised before him by either of the parties. The position then was that the trial Court bad found in favour of the plaintiffs on every point except as regards the formal execution of the deed of mortgage. That point the Court was now bound to decide in favour of the plaintiffs under Act xxvi 1917, but the mere filing of the appeal had opened a door to the defendants to support the decision of the trial Court on any point which had been decided against them. The order under appeal shows that they actually tried to do this, for they asked the District Judge to reconsider the finding on the question of payment of consideration and to record a new finding in their favour. The learned District Judge seams to have taken this point into consideration and to have discussed it but we cannot treat his remarks on the point as equivalent to the recording of a finding in view of the fact that he goes on to say that he holds himself bound by the original finding of the Subordinate Judge. That he was not so bound is, in our opinion, clear, for two reasons. When the review was granted by the District Judge it was a review of his order dismissing the appeal. The decision of the 'former Court' referred to in proviso 3 to Section 3 of Act XXVI of 1917 was the decision of the District Judge, the Court of first appeal, and not that of the Subordinate Judge, the original trial Court. Moreover, the question of the payment of consideration for this mortgage had not been finally determined when an appeal was brought against the decree of the trial Court by the plaintiffs. It was an issue which required to be determined in the Appellate Court after the question of execution had been decided in favour of the plaintiffs. We have tome to the conclusion that the proper way for us to deal with this matter is to remit an issue on the question of consideration to the lower Appellate Court so as to secure a clear finding. The issue then is as follows:

2. Was the consideration for the mortgage deed in suit actually paid, and if so, was it such as to bind the interest of Jagannath in the property mortgaged?

3. Ten days will be allowed for objections after return of finding.


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