Skip to content


Banu Mal Mangat Rai Vs. Mehta Nathulal L. Kundanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberFirst Appeal No. 152 of 1953
Judge
Reported inAIR1960P& H357
ActsLimitation Act - Sections 5 and 14; Suites Valuation Act, 1887; Punjab Courts Act, 1918 - Sections 39
AppellantBanu Mal Mangat Rai
RespondentMehta Nathulal L. Kundanlal and ors.
Cases ReferredMurari Lal v. Chet Ram
Excerpt:
.....persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order. - nathu mal felt satisfied with the decree, but banu mal felt aggrieved and in the first instance filed an appeal on 19-3-1953, before the district judge......property and for recovery of rs. 9, 145/- on the basis of the above mentioned mortgage. this suit was decreed on 25-1-1906, and raghu mal was found entitled to rs. 8,556-10-0 as the mortgage debt. this decree was later on sold to pars ram and jagan nath, meanwhile on 19-1-1909, one tulsa singh, an unsecured creditor, obtained a money decree against the sons of baldeo das and in execution of his decree the equity of redemption was sold to girdhari lal; vide sale certificate. exhibit p-23, (printed at page 61 of the paper book).2. on 30-4-1918, pars ram etc., the purchasers of the mortgage decree of raghu mal filed a suit for possession as mortgagees against girdhari lal, and their suit was decree on 28-11-1918 (vide exhibit p-12). thereafter on 2-8-1920, the successors-in-interest.....
Judgment:

Harbans Singh, J.

1. Facts giving rise to this Regular First Appeal may briefly be set out as under. On 21-10-1987, Baldeo Dass mortgaged the property in dispute in favour of Raghu Mal for Rs. 20,000/-. On 16-1-1905, Raghu Mal brought a suit against Baldeo Dass, his sons and grandsons for possession of the mortgaged property and for recovery of Rs. 9, 145/- on the basis of the above mentioned mortgage. This suit was decreed on 25-1-1906, and Raghu Mal was found entitled to Rs. 8,556-10-0 as the mortgage debt. This decree was later on sold to Pars Ram and Jagan Nath, Meanwhile on 19-1-1909, one Tulsa Singh, an unsecured creditor, obtained a money decree against the sons of Baldeo Das and in execution of his decree the equity of redemption was sold to Girdhari Lal; vide sale certificate. Exhibit P-23, (printed at page 61 of the paper book).

2. On 30-4-1918, Pars Ram etc., the purchasers of the mortgage decree of Raghu Mal filed a suit for possession as mortgagees against Girdhari Lal, and their suit was decree on 28-11-1918 (vide Exhibit P-12). Thereafter on 2-8-1920, the successors-in-interest of original mortgagor Baldeo Dass purported to sell the equity of redemption to Banu Mal for Rs. 6,000/- (vide exhibit D-4, printed at page 97), apparently concealing the fact that the equity of redemption and already been purchased by Girdhari Lal in an auction sale. Banu Mal thereafter paid off all the provisos mortgagees, namely, Pars Ram etc. Girdhari Lal claiming to be the owner of equity of redemption brought a suit for possession of the property by redemption against Banu Mal etc. This suit was decreed on 12-2-1927, and it was found that Rs. 3,750/- were due to the mortgagee Banu Mal on the basis of the mortgage and another Rs. 1,200/- were due for improvements effected by Banu Mal.

3. No payment was actually made by Girdhari Lal, nor did Banu Mal take any proceedings for foreclosure. Later successors-in-interest of Girdhari Lal sold their rights in the property to Kishan Chand, and Kishan Chand, in turn, sold them to Nathu Mal. The suit out of which the present appeal has arisen was filed on 22-2-1951, by the aforesaid Nathu Mal against Banu Mal claiming possession by redemption on payment of Rs. 3,750/-. He was granted a decree on 31-1-1953. The Court found that in addition to the aforesaid sum, Banu Mal was entitled to Rs. 1,200/- awarded to him under the previous decree dated 12-2-1927, and in addition he was entitled to another sum of Rs, 1,500/- towards compensation for the expenses incurred by him in keeping the property in a fit condition of repair and for making improvements. Nathu Mal felt satisfied with the decree, but Banu Mal felt aggrieved and in the first instance filed an appeal on 19-3-1953, before the District Judge. The memorandum of appeal was, however, returned by the District Jude, on 8-8-1953, holding that the appeal did not lie in that Court. The appeal was filed as Regular Fist Appeal on 10-8-1953, in this Court.

(2) A preliminary objection was taken on behalf of the respondents to the effect that the appeal really lay in the High Court and that in filing the same in the Court of the District Judge, the appellant and his legal advisers acted with negligence and without due care, and that consequently time should not be extended under Ss. 5 and 14 of the Limitation Act. Reliance was placed on the Full Bench decision in Jaswant Ram v. Moti Ram, ILR 7 Lah 570: (AIR 1926 Lah 376). This was a redemption case and it was held that:

'in the absence of any legislative enactment or statutory rule the valuation of a suit depends upon the value of the subject-matter which in a redemption suit is the amount which the mortgagor should, before recovering the mortgaged property, pay to the mortgagee, and this depends upon the adjudication of the Court and not on the valuation given by the plaintiff which can be regarded as only a tentative valuation and is subject to the decision of the Court.'

The learned counsel for the appellant, however, urged that since the decision in this Full Bench, rules have been framed by the High Court, and he referred to 1943 Lah LT, Part III, p. 12. Rule 9 at page 14 runs as follows:

'9. Suits in which the plaintiff in the plaint asks for redemption of the property mortgaged or foreclosure of the mortgage.

(a).. ... .. .. .. ...

(b) For the purposes of the Suites Valuation Act, 1887, and the Punjab Courts Act, 1918--the amount of the principal and interest calculated on the terms of the mortgage at the date of the institution of the suit.'

It was urged that as stated in the Full Bench decision, under Section 39, sub-section (1) of the Punjab Courts Act, an appeal from a decree or an order of a Subordinate Judge lies to the District Judge 'Where the value of the original suit in which the decree or order was made did not exceed Rs. 5,000/- '. He contended that in view of the statutory rules framed by the High Court, the value of the original suit does not change and is equivalent to the amount of the principal and interest calculated on the terms of the mortgage at the date of the institution of the suit, and that this value for the purposes of jurisdiction does not vary if the trial Court finds that some additional amount is payable to the mortgagee as compensation for improvements etc. The value must be calculated on the basis of the principal amount and the interest due on the same.

(3) These rules were taken notice of by a Division Bench of this Court in Murari Lal v. Chet Ram, AIR 1954 Punj 36, but it was held that for the purposes of appeal the rule laid down in Jaswant Ram's case, ILR 7 Lah 570: (AIR 1926 Lah 376)(FB), would still apply. This was, however, in an accounts case for which the statutory rule is in an accounts case for which the statutory rule is different. It is provided in Rr. 3 and 4 that value for the purposes of jurisdiction, where the plaintiff seeks to recover the amount, which may be found due, after taking accounts, would be as fixed by the plaintiff in the plaint subject to determination by the Court at any stage of the trial. We, therefore, feel that the contention of the learned counsel for the appellant has force, and in view of R. 9 referred to above the value for the purposes of jurisdiction of the original suit for redemption does not vary with the determination of the amount found due to the mortgagee and must be determined in accordance with that rule, and that accordingly the present appeal seems to have been rightly field in the Court of the District Judge. It is, however, not necessary to send back the appeal to that Court for decision, as we have no doubt that on merits, there is no force in this appeal.

The learned counsel for the appellant had to conceded that Nathu Mal being the successor-in-interest of Girdhari Lal was entitled to ask for possession by redemption. The only point urged by him was that Banu Mal was entitled to a larger amount towards compensation for the improvements effected by him. On making a reference to the original mortgage deed of 1897, Exhibit P-4, printed at page 42 of the paper book, we find that the mortgagee was not given any authority to add to the existing structure. All that was provided was that the mortgagor will be responsible for repairs. If repairs have actually been effected by the mortgagee, he can claim the amount so spent by him. he cannot, however, claim anything for the additions and alterations made in the property in dispute. He has, however, been allowed Rs. 2700/- against which no cross-appeal or cross-objections have been filed. It cannot be suggested by the learned counsel that on repairs he could have spent more than this amount.

(4) In view of the above, we find that the appellant has already got more than what was due to him and there is no merit in this appeal, and we dismiss the same with costs.

Appeal dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //