- (1.) This rule is directed against an appellate order made by the Subordinate Judge, Fourth Court, Dacca, in Miscellaneous Appeal No. 207 of 1941 affirming an order of the Munsif, Third Court of that place by which an application made by the petitioners under Section 26(g)(5), Ben. Ten. Act, was rejected. The petitioners case was that on 1 December 1925 they had executed a usufructuary mortgage bond in favour of the opposite parties in respect of certain land described in the petition, to secure an advance of Rs. 1000 received from the latter; and as more than 15 years had elapsed from the date of the registration of the mortgage deed they prayed for restoration of the mortgaged property under Section 26(g)(5), Ben. Ten. Act. This application was resisted by the opposite parties principally on the ground that the petitioners had no title to the mortgaged property at the date when the mortgage bond was executed. The trial Court upheld this contention of the opposite parties and rejected the application of the petitioners under Section 26(g)(5), Ben. Ten. Act. An appeal was taken against this order and the lower appellate Court, as has been said already, dismissed the appeal and affirmed the order of the trial Judge. Against this order of the appellate Court this present rule was obtained. A preliminary point has been raised on behalf of the opposite parties in this rule and it has been contended by the learned advocate who appears for them, that as the order of the lower appellate Court could have been challenged by way of appeal it was not competent to the petitioners to come up in revision under Section 115, Civil P.C. It seems to us that this contention is sound and must prevail. The determination of this point turns on the Interpretation to be put on the words of Sub-section 7 of Section 26(g), Ben. Ten. Act, which is one of the new clauses added by the amending Act 18 of 1940. Sub-section (7) reads as follows: Any order made by a Court under Sub-section (6) shall have the effect of a decree of a civil Court and shall be subject to the provisions of the Civil P. C., 1908, in respect of the appeal, revision or review.
(2.) Sub-section (6) has also been altered to some extent by the amending Act mentioned aforesaid and it now stands as follows: An application under Sub-section (5) shall be accompanied by a process-fee of the prescribed amount for service of notice on the mortgagee and the Court to which such an application is made may after service of such notice award to the mortgagor such compensation as appears equitable and may pass an order restoring possession of the mortgaged property to the mortgagor.
(3.) Thus it is clear that if the order is one passed under Sub-section (6) of Section 26(g), Ben. Ten. Act, it would have the force of a decree under the Civil P. C. and would be appealable as such. The controversy centres round the short point whether the order complained of does come within the purview of Sub-section (6) of Section 26(g), Ben. Ten. Act. It has been argued on behalf of the petitioners that the order contemplated by Sub- section (6) is an order restoring possession of the mortgaged property to the applicant and when such an order is passed it will have the force and effect of a decree, but when the application is rejected and no order for possession is made the order of dismissal is not an order under Sub-section (6) within the meaning of Sub-section (7). Such an order cannot operate as a decree and cannot be appealed against as such. It is suggested that the Legislature may have good grounds for not giving the right of appeal in such cases. Section 26 (g)(5) after all provides for a summary remedy and does not take away the ordinary remedy which the mortgagor may otherwise have and the rejection of the application of the mortgagor cannot stand in the way of his availing himself of other remedies open to him in law. It is true that it is quite optional with the mortgagor to proceed by way of an application under Section 26(g)(5), Ben. Ten. Act, or not. But, although, the rule of res judicata may not apply to summary proceedings of this sort, we are not sure that a litigant who has the choice of two alternative remedies and has made his choice in a particular way can afterwards turn round and seek the other remedy where he has got an adverse order against him in the first proceeding. But it is not necessary for us to decide this matter finally for, in our opinion, these are not relevant considerations and cannot outweigh the positive provisions of the statute. The only question for our consideration is whether an order refusing the relief prayed for under Sub-section (5) is "an order made under Sub-section (6).";