BHASKARMALLA BARUA AND ORS. Vs. JOYNARAIYAN CHENEHIRAM FIRM
HIGH COURT OF GAUHATI
Bhaskarmalla Barua And Ors.
Joynaraiyan Chenehiram Firm
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Thadani, C.J. -
(1.) THIS is a First Appeal front the judgment and decree of the learned Subordinate judge, L.A.D., dated 21 -9 -49, by which he dismissed, the plaintiff's suit with no order as to costs.
(2.) MR . Lahiri for the respondent has taken a preliminary objection to the effect that an appeal in this case does not lie to the High Court, but to the District Court. His contention is that the suit brought by the plaintiff is a suit for redemption of the mortgaged property notwithstanding the fact that the plaintiff has described the suit as a suit for a declaration of title and possession and prayed for such a declaration and relief as to possession in the event of the Court coming to the conclusion that the mortgage debt must be deemed to be discharged by virtue of Section 8(2) of the Assam Debt; Conciliation Act. Mr. Lahiri has drawn our attention to the prayer clause which is appropriate only to a suit for redemption of the mortgaged property. We think the contention must prevail. It is not disputed that the mortgage was for a sum of Rs. 2,000/ -. In our view, the suit is governed by Clause 9 of Section 7 of the Court -fees Act. The Court -fee in such a suit is payable according to the principal money expressed to be secured by the instrument of mortgage. The suit in this case was, therefore, to be valued, both for the purpose of jurisdiction and Court -fees, at a sum not exceeding Rs. 2,000/ -. Appeals to the appropriate Court from the decisions of the Subordinate Courts are governed by Section 21 of the Civil Courts Act XII of 1877. (sic) Clauses (a) and (b) of Section 21(i) of the Civil Courts Act of 1877 are in these terms:
21(i) save as aforesaid, an appeal from a decree or order of a Subordinate Judge shall lie:
(a) to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five thousand rupees , and;
(b) to the High Court in any other case.
(3.) MR . Ghose for the appellant, however, contended that the suit was a suit for declaration of title and khas possession in view of the fact that the mortgage debt must be deemed to have been discharged in virtue of the Assam Debt Conciliation Act. The contention is based upon a lack of appreciation of the difference between the expression 'redemption of a mortgage' and redemption of the mortgaged property. In a case reported in 'Jankl Nath v. Pramathe Nath' : AIR 1940 PC 38 , their Lordships of the Privy Council observed:
In their Lordships' opinion, it is clear that the words in Section 92 of the T.P. Act 'mortgage has been; redeemed' refer merely to the payment of the mortgage money and not to an extinction of the mortgagees right over the mortgaged property.
In Anr. case from Peshawar which came up before the Privy Council and is reported in 'Sudama v. Brijgopal Das' : AIR 1948 P.C. 36, Sir Johft A Beaumont, delivering the judgment of the Board, J. observed:
Reliance is placed by the appellant on the case in 'Ma Mia Saing v. Ma Su We' 5 Rang 499, where it was held that in a redemption suit where the mortgagee is in possession, the subject -matter is the land sought to be redeemed and the valuations of such suits for the purposes of jurisdiction should be based on the value of the land. That view has not prevailed in the Indian High Courts where it has been held that value for purposes of jurisdiction in a redemption suit depends on the amount found due to the mortgagee. In their Lordships opinion, this latter view is clearly correct. As pointed out in the judgment of the Court of the Judicial Commissioner, a redemption suit is concerned with the interest of the mortgagee only and not with the interest of the mortgagor, and the value of the equity of redemption is irrelevant. It is no doubt true that where the mortgagee is in possession, the effect of granting or withholding an order for redemption may be to confirm the title of the mortgagor or the mortgagee, as the case may be, to the whole property, but this is an incidental effect of the order made, and does not involve that the whole property is the subject -matter of the litigation.;
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