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Hadibandhu Mallik Vs. Chandra Sekhar Behera - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 388 of 1971
Judge
Reported inAIR1973Ori141
ActsCode of Civil Procedure (CPC) , 1908 - Sections 16; Transfer of Property Act, 1882 - Sections 68
AppellantHadibandhu Mallik
RespondentChandra Sekhar Behera
Appellant AdvocateAsok Das and ;A. Rath, Advs.
Respondent AdvocateRanjit Mohanty, Adv.
DispositionRevision allowed
Excerpt:
.....v smt gita banik, 1996 (2) glt 246, are not good law]. - it is recited in the mortgage bond a copy of which has been produced before me that the plaintiff was to remain in possession of the mortgaged properties and enjoy the usufruct of the land towards interest on the sum advanced......for consideration in the suit giving rise to this revision petition is whether the court of the munsif banki has territorial jurisdiction to entertain the suit. the opposite party as plaintiff instituted a suit in the court of the munsif. banki for recovery of rs. 3,200/-from the petitioner with costs and future interests thereon. his case is that on 22-3-1967, the petitioner borrowed rs. 3,000/- from him on the basis of a usufructuary mortgage in respect of certain properties admittedly situated within the munsiffi of khandapara. it is recited in the mortgage bond a copy of which has been produced before me that the plaintiff was to remain in possession of the mortgaged properties and enjoy the usufruct of the land towards interest on the sum advanced. then follows the recital which.....
Judgment:
ORDER

B.K. Patra, J.

1. The short question that arises for consideration in the suit giving rise to this revision petition is whether the Court of the Munsif Banki has territorial jurisdiction to entertain the suit. The opposite party as plaintiff instituted a suit in the Court of the Munsif. Banki for recovery of Rs. 3,200/-from the petitioner with costs and future interests thereon. His case is that on 22-3-1967, the petitioner borrowed Rs. 3,000/- from him on the basis of a usufructuary mortgage in respect of certain properties admittedly situated within the Munsiffi of Khandapara. It is recited in the mortgage bond a copy of which has been produced before me that the plaintiff was to remain in possession of the mortgaged properties and enjoy the usufruct of the land towards interest on the sum advanced. Then follows the recital which may be translated thus:

'Whenever I would pay to you the principal amount you would deliver back possession of the (mortgaged) lands to me. If anybody disturbs possession in respect of the mortgaged lands you will be entitled to recover the principal amount with interest at twelve per cent thereon by sale of the mortgaged properties and if the sale proceeds would be insufficient, then by attachment and sale of my other properties.'

2. It was alleged in the plaint that the plaintiff remained in possession of the mortgaged lands right up from the date of execution of the bond and was appropriating the usufruct of the lands towards interest due to him but that on 6-10-1970 the defendant dispossessed the plaintiff from the lands and cut and carried away the crops which he had raised thereon. He, therefore, brought the suit for recovery of the principal amount of Rs. 3,000/- and a further sum of Rs. 200/- being the value of the crops cut and carried away by the defendant on 6-10-1970, besides future interest thereon and costs of the suit.

3. The defendant traversed all the allegations in the plaint. We are not in this petition concerned with the other defences excepting the one wherein it was contended that the Court has no territorial jurisdiction to try the suit. It may be incidentally mentioned that the defendant resides within the jurisdiction of the Munsif of Khandapara while the plaintiff is residing within the jurisdiction of the Munsif of Banki and according to the plaint allegation, the principal amount of Rs. 3,000/- was said to have been advanced at the plaintiff's house.

4. The issue regarding jurisdiction was tried as a preliminary issue and the learned Munsif by his impugned order held that he had jurisdiction to try the suit because the suit is one for recovery of monoy and the same was advanced at the plaintiff's house in Baideswar which is situated within the Munsiff of Banki. Being aggrieved by this decision, the defendant has filed this revision application.

5. Mr. R. Mohanty appearing for the plaintiff opposite party sought to support the impugned order on the ground that the suit is one to enforce a personal liability to Day the mortgage money and as that amount was advanced at Baideswar, the Banki Court has territorial jurisdiction to entertain the suit. I am unable to accept the plea that the mortgage bond contained any personal covenant to pay. Nowhere within the four corners of the mortgage bond do I find any stipulation that the mortgagor personally bound himself to pay the mortgage debt. It is a pure and simple usufructuary mortgage and so long as the mortgagee remains in possession, he has no right to sue for the mortgage money. It is true that a personal covenant, to repay the mortgage money is presumed to exist in all mortgages. But this presumption is of no avail if there is something in the nature of the terms of mortgage to negative it. The nature of a usufructuary mortgage is such that there is no personal liability to pay implied in it. The remedy of the mortgagee in such cases is intended to be only against the mortgaged property. The test in fact to find out whether the mortgagor has bound himself to pay the amount is to see what remedy the mortgagee is intended to have for the recovery of the amount.

The general rule is that a remedy limited to a particular mode of recovery excludes the general personal liability for such payment. As is clear from the recitals in the mortgage bond, a translation of the relevant portion of which is extracted above, it was stipulated that in case the mortgagee is dispossessed from the properties, he is to recover the mortgage money first by the sale of the mortgaged properties, and in case there is a deficit, by sale of other properties of the mortgagor. There is thus no personal covenant to pay the mortgage money. Section 68 of the Transfer of Property Act enumerates cases where the mortgagee has a right to sue for the mortgage money. Under Clause (a), the mortgagee can sue for the mortgage money where the mortgagor binds himself to repay the same. For reasons already stated, Caluse (a) is wholly inapplicable to this case. The present case would fall under Clause (c), that is, where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor. The suit is therefore in the nature of a suit for the wrong done to immovable property inasmuch as the mortgagee is deprived of Ms security by a wrongful act by the mortgagor.

6. Section 16 of the Civil Procedure Code provides that subject to the pecuniary or other limitations prescribed by any law, suits for compensation for wrong done to immovable property shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. The last paragraph of the Section provides that suits to obtain a relief respecting, or compensation for wrong to immovable property may be instituted either in the Court within the local limits of whose jurisdiction the property is situated, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. In this case, the mortgaged properties are situated within the jurisdiction of the Munsif of Khandpara and the defendant also resides there. Consequently, the Munsif of Banki has no territorial jurisdiction to entertain the suit.

7. In the result. I would allow this revision application and direct the learned Munsif. Banki to return the plaint to the plaintiff for presentation before the proper Court. In the circumstances, there would be no order as to costs. The records be sent down immediately to the trial Court.


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