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Syed Mohammad Ali Vs. Maktub-un-nissa and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in114Ind.Cas.47
AppellantSyed Mohammad Ali
RespondentMaktub-un-nissa and anr.
Cases ReferredCiv and Raza Husain v. Hasan Jan
Excerpt:
provincial small cause, courts act (ix of 1887), schedule ii, article 42 - suit for contribution by co-mortgagor based on implied contract for re-imbursement--jurisdiction of small cause courts--contract act (ix of 1872), section 69--transfer of property act (iv of 1882), section 95. - - 694 where a learned judge of this court held that a suit like the present was in substance one covered by article 42. no reasons are given for the opinion. i think however that only such suits are barred as are actually covered by the words of the different articles and not those which are in substance like suits described in those articles......the entire amount of the decree for sale obtained on the mortgage. subsequently they brought the present suit for contribution against the defendant to the extent of his share in the property. the defendant has been held by the two subordinate courts to have been one of the mortgagors. ground of revision no. 2, therefore, has no force. the difficulty arises, however, that the suit was tried regularly and not by a court of small causes. the trial court referred to article 42, schedule ii, of the provincial small cause courts act which takes away from the jurisdiction of that court a suit by one of several joint mortgagors of immoveable property for contribution in respect of money paid by him for the redemption of the mortgaged property. i have read the plaint of the present suit. it is.....
Judgment:

Dalal, J.

1. I am afraid that this Court must interfere in revision, though it appears on the face of the record, as pointed out by the plaintiffs-respondents' learned Counsel that substantial justice has been done. The plaintiffs were heirs of one of two co-mortgagors and paid up the entire amount of the decree for sale obtained on the mortgage. Subsequently they brought the present suit for contribution against the defendant to the extent of his share in the property. The defendant has been held by the two subordinate Courts to have been one of the mortgagors. Ground of Revision No. 2, therefore, has no force. The difficulty arises, however, that the suit was tried regularly and not by a Court of Small Causes. The trial Court referred to Article 42, Schedule II, of the Provincial Small Cause Courts Act which takes away from the jurisdiction of that Court a suit by one of several joint mortgagors of immoveable property for contribution in respect of money paid by him for the redemption of the mortgaged property. I have read the plaint of the present suit. It is based on the provision of Section 69 of the Contract Act. A person who is interested in the payment of money which another is bound by law to pay and who, therefore, pays it is entitled to be re-imbursed by the other. The present suit is not one under Section 95 of the Transfer of Property Act which says:

Where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the share of each of the other co-mortgagors in the property for his proportion of the expenses properly incurred in so redeeming and obtaining possession'. The wording of Clause 42, Schedule II, of the Provincial Small Cause Courts Act is such that it must refer to a suit of the nature mentioned in Section 95 of the Transfer of Property Act which is a suit for the enforcement of a lien by sale of mortgaged property. The learned Counsel for the respondent very properly referred me to the case of Talaimand Singh v. Gobind Singh 29 Ind. Cas. 247 : 13 A.L.J. 694 where a learned Judge of this Court held that a suit like the present was in substance one covered by Article 42. No reasons are given for the opinion. The learned Judge is not of opinion that the suit is the same as that referred to in Article 42, but has stated that it was in substance such. I think however that only such suits are barred as are actually covered by the words of the different articles and not those which are in substance like suits described in those articles. In the present case the plaintiffs were compelled to pay money which the defendant was liable to pay and the suit is based on an implied contract for re-imbursement. The suit is not brought under any of the sections of the Transfer of Property Act. I have been referred by learned Counsel to other decisions of this Court, Gaya Pande v. Amar Deo Pande 85 Ind. Cas. 498 : 22 A.L.J. 855 : A.I.R. 1924 All. 787 : L.R. 5 A. 673 Civ and Raza Husain v. Hasan Jan 29 Ind. Cas. 245 : 13 A.L.J. 632. In those cases, however, the facts were not similar.

2. I set aside the decrees of the two subordinate Courts and direct the Court of the Munsif to return the plaint to the plaintiffs for institution of a suit in the Court of Small Causes having jurisdiction. Costs here and heretofore shall abide the result.


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