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Bhola Shah Narsingh Das Jaini Vs. Mohan Lal and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 1 of 1955
Judge
Reported inAIR1955HP50
ActsSuits Valuation Act, 1887 - Section 8; ;Code of Civil Procedure (CPC) , 1908 - Sections 15 and 96
AppellantBhola Shah Narsingh Das Jaini
RespondentMohan Lal and Co. and anr.
Appellant Advocate D.N. Vaidya, Adv.
Respondent Advocate Hira Lal, Adv. for No. 1 and; Kirti Ram, Adv. for No. 2
Cases ReferredNarna Balayya v. Rudravarma Venkatappa
Excerpt:
- .....when this appeal was admitted on 22nd instant, i had pointed out that it was doubtful whether the senior subordinate judge, mandi, had jurisdiction to try the suit and give a finding on the point of limitation, since the relief asked for by the plaintiff firm could not be given without giving a finding as to whether there was a valid subsisting mortgage debt of rs. 21,956-9-0 in favour of the plaintiffs due from the defendant-respondent no. 2. the senior subordinate judge, mandi, exercises pecuniary jurisdiction in respect or suits upto rs. 10,000/- only. 2. this morning, learned counsel for the appellants conceded that the senior subordinate judge had no jurisdiction to try the suit and in support of his argument cited--'narna balayya v. rudravarma venkatappa', 15 ind cas 221 (mad).....
Judgment:

Ramabhadran, J.C.

1. When this appeal was admitted on 22nd instant, I had pointed out that it was doubtful whether the Senior Subordinate Judge, Mandi, had jurisdiction to try the suit and give a finding on the point of limitation, since the relief asked for by the plaintiff firm could not be given without giving a finding as to whether there was a valid subsisting mortgage debt of Rs. 21,956-9-0 in favour of the plaintiffs due from the defendant-respondent No. 2. The Senior Subordinate Judge, Mandi, exercises pecuniary jurisdiction in respect or suits upto Rs. 10,000/- only.

2. This morning, learned counsel for the appellants conceded that the Senior Subordinate Judge had no jurisdiction to try the suit and in support of his argument cited--'Narna Balayya v. Rudravarma Venkatappa', 15 Ind Cas 221 (Mad) (A). There, the facts were that defendant No. 2 had a mortgage of certain properties from defendant No. 1. He instituted a suit on the basis of his mortgage and obtained a decree for sale. The plaintiff, claiming to be a prior mortgagee to the extent of Rs. 3,300/-, objected to the sale. The District Munsif, in whose Court proceedings for execution of the second defendant's mortgage were going on, exercised powers only upto Rs. 2,500/-. The Munsif directed that notice of the plaintiff's claim of a previous mortgage should be given to intending bidders. Before the District Munsif and, on an appeal to the District Judge, it was urged that the Court of the District Munsif had no jurisdiction in the matter, since a claim to the extent of Rs. 3,300/--obviously, beyond the pecuniary powers of the Munsif--was involved. The trial Court and the lower appellate Court did not accept this plea. In second appeal, however, it was held by their Lordships of the Madras High Court as follows:

'The District Judge considers that the matter in dispute in the suit should not be taken to be of a higher value than the amount for which the second defendant obtained a mortgage decree, which was Rs. 264/-. It is difficult to understand how this view can be supported. If the plaintiff succeeds in his suit, he would establish a claim to the extent of Rs. 3,300/- as against the second defendant, or rather against the mortgaged property over which the second defendant has also a mortgage and if he fails in his suit, he would lose as against the second defendant the right of enforcing a claim for Rs. 3,300/-. This case is not similar to cases in which it has been held that if the property itself is not worth the amount of the lien, the value of the suit may be taken not to exceed the market-value of the property. We must hold that the suit ought not to have been instituted in the Munsif's Court.'

3. On the same analogy, it is contended that in the present case, the Senior Subordinate Judge was really concerned with the question as to the factum and validity of a mortgage to the extent of Rs. 21,956-9-0, which was clearly beyond his pecuniary jurisdiction.

4. Learned counsel for the respondents argued that the matter at issue is whether the property under attachment is, or is not, liable to a charge of the plaintiff. Reliance was placed on AIR 1916 Lab. 337 (sic), where it was held:

'An executing Court has to decide an objection to an attachment although the value of the property might greatly exceed the value of the decree.'

5. The present case can, however, be easily distinguished from the Lahore case. As already stated, the suit cannot proceed without adjudicating upon the mortgage debt of Rs. 21,956.-9-0. Without adjudicating upon that point, the suit cannot be decided one way or the other. This case is, in many respects, similar to the Madras case, reported in 15 Ind Gas 221 (Mad) (A), quoted above. I, therefore, hold that the Senior Subordinate Judge, Mandi, had no jurisdiction to try the suit, or go into the point of limitation involved therein.

6. Learned counsel for the respondents argued that although the suit was valued at Rs. 6,000/-, its value should be deemed to be that of the decree under execution, i.e., Rs. 4,840/- and that consequently the present appeal lies to the District Judge and not to this Court. This was a declaratory suit and as such it will not be governed by Section 8, Suits Valuation Act. Strictly speaking, the plaintiff should have valued the suit for purposes of jurisdiction at Rs. 21,956-9-0, being the amount of the mortgage debt in question. The plaintiff valued the suit at Rs. 6,000/-, presumably under some misunderstanding--but in view of that valuation, the appeal lies to this Court and not to the District Judge.

7. In view of what has been said above, it followsthat the Court of the District Judge of Mandi hadthe sole jurisdiction to try the suit. The suit shouldnot have been transferred by the District Judge tothe Senior Subordinate Judge on 27-2-1954. Theresult is that, without expressing any opinion on themerits of the appeal, I set aside the decree of theCourt below, and quash all proceedings in thatCourt, subsequent to the transfer of the suit fromthe Court of the District Judge. The learned District Judge will please take up the suit from thestage it had reached, where it was transferred tothe Court of the Senior Subordinate Judge and dispose of it in accordance with law. Under the circumstances of the case, there is no order regardingcosts of the appeal.


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