LexRAJA SAILENDRA NARAYAN BHANJ DEO versus KUMAR JAGAT KISHORE PRASAD NARA YAN SINGH
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
:! S.C.R. SUPREME COURT REPORTS 119 RAJA SAILENDRA NARAYAN BHANJ DEO v. KUMAR JAGAT KISHORE PRASAD NARA YAN SINGH (P. B. GAJENDRAGADKAR, A.K. SARKAR, K. c. DAS GuPTA and N. RAJAGOPAI.A AYYANGAR, JJ.) Suit for redemption decreed and accounts ordered-Appeal pending-Mortgage tenure vested in the Stat• by virtue of notifi- cation .free for all encumbrances-Effect-Jurisdiction of Civil Courts, if barnd-Decree of redemption, if becomes infructuous- Bihar Tenancy Act, 1885. (Bihai· 8 of 1885), s. 171-Bihar Land Reforms Act, 1950 (Bihar 30 of 1950), ss. 14, 35. K the mortgagee of certain Mokarrari tenures obtained a decree on his mortgage and put it into execution. Pending execution, C the mortgagor having failed to pay the rent of the mortgaged and some other tenures· they became liable to be solG. ;or the realisation of the ar1ears of rent under a certi- ficate issued for the purpose. K whose security was thereby jeopardised paid the arrears and became under s. 171 of the Bihar Tenancy Act a mortgagee of the tenures for the amount paid and entitled to possc'5ion of them till repayment. K thereafter took possession of the tenures. After C had died in 1941, the respondent claiming to represent his estate as recei- ver and executor under bis will sued the appellant who had 5uccetded to K's interest, for redemption of the mortgages on the allegation that K and the appellant bad realised from the rents of the tenures in their possession more ~ban what was due. The suit was decreed by the trial court. The ap- pellant appealed to the High Court at Patna. While the appeal was pending there the Bih.ar Land Reforms Act, 1950, came into force and as a result of a notification issued under it all the tenures beca1ne vested in the State of Bihar free from all encun1brances and the proprietors, tenure-holders and all other persons ceased to have any interest in them _but became entitled to comp..::nsation £Or the divestrr1ent. As required by s. l 4 of the Land Reforms Act, the appellant filed a claim before the officer appointed under the .Act in respect of his 1nortgages on the tenures and such claim was adjudge at a cer- tain sum on notice to C's repre~entatives \vhich adjudication later. becarr1C final under a. l 8. Under the provisions of the Land Reforms Act, the amount so found due became payable out of the con1pensation awarde<l. to the proprietors and tenure- holdcrs. Ther~after the appeal before the High Court came up for hearing. The appeltant contended that in view of the. provisions of s.35 of the Land Reforn1s Act a civil c.:>urt must 1981 DecembeT 13. 19'1 Rojo Sail1n,ta J(aa,_,. Bh,oj [)fo •• X111JU1F J"lat K i.Jlulrt usodNa o,10n su.1Ja 8.,,.., J. 120 SUPREME COURT REPORTS (1962J SUPP· be deemed to have no jurisdiction to decide any question con- cerning claims under mortgages of tenures vested in the Government under the Act. The High Cuurt rejected this CJntcntion observing that the Act barred a suit by a mortgagee only and not a suit by a mortgagor and confirmed the decree. Held, that though the Act did not expressly bar a suit b}· a mortgagor for redcmptiun, that was the practical and inevi- table effect of it. The mongage accounts could not be taken over again by the civil court "·hen they had been taken under the Act and the decision in the proceedings under the Act had become final. Held, further, m the proceedings under the Act to ascer- tain the claim of a creditor, the debtor. was entitled to show what had been paid to the creditor or what the creditor had realised from the mortgaged property. Held, alJO, that after a mortgagor had been divested of the mortgaged property under the Act a redemption decree would be infructuous as the mortgagor would not then be entitled to have it reconveycd to hirn. 4'\Jeithl:r would il then be in the power of the mongagce tu cou \'Cy that pro- perty. In fact the mortgagor having been dive><ed of the property and lost his right of redemption. Qtury-Whether if the mortgagee had re•lised from the profits of tile mortgage property more than wha1 wa> due him on his mortgage, a suit by the mortgagor for refund would lie? CIVIL APPELLAT.t: JURISDICTION: Civil Appeal No. 246 of U15ll. Appeal from the judgment and decree dated December 4, 1956; of the Patna High Court in First Appeal No. 429 of 1951. A. V. Vi8wanatha Saatri and Mohan Be/iari .Lal, for the appellant. B. K. P. SinJia and .4. G. Ratnapa
Excerpt shown. Read the full judgment & AI analysis in Lexace.