JAMNA DEVI Vs. GHIAS UD DIN AHMED KHAN

JUDGEMENT

(1.) The petitioner is the plaintiff. She was a mortgagee of the property in dispute from Muslims. One of the mortgagors became an evacuee. His share in the property was 2/5th. The remaining mortgagors remained on this side and have thus been nonevacuees their share being 3/5th. The petitioner instituted a suit on August 21, 1951, to enforce the mortgage by sale of the mortgaged property. While that suit Was pending, on October 31,1951, came into force the Evacuee Interest (Separation) Act, 1951 (Act 64 of 1951), under the provisions of which the Competent Officer had been given jurisdiction to separate the evacuee interest from the non-evacuee interest in a property in which an evacuee has left little. In a case like the present the separation obviously would be one of the interest of the evacuee mortgagor from the interest of the non-evacuee mortgagors and two, of the interest of the evacuee mortgagor from the interest of the non-evacuee inortgagee. In such circumstances a co-sharer and a mortgagee can make an application under section 7 of the Act for separation of the evacuee interest from his interest in the property. Accordingly the non-evacuee mortgagors as also the mortgagee, the present petitioner, made applications under section 7. At this stage it is sufficient to say that, after prolonged litigation what has happened is that 2/5th share of the evacuee mortgagor has been sold by the Competent Officer and it has been purchased by the non-evacuee mortgagors. The mortgage charge on that 2/5th share of the mortgaged property has been discharged by payment of the rateable mortgage money to the mortgagee, the petitioner, but with this difference that interest on the mortgage money to the extent of this share has been calculated at the rate of 5 per cent per annum according to section 9 of the Act, and that rate of interest is less than the contractual rate under the mortgage. The remaining 3/5th share of the non-evacuee mortgagors has also been redeemed by their paying the remaining 3/5th of the mortgage money, with interest calculated at the rate of 7 per cent according to the Punjab Relief of Indebtedness Act and also According to the agreement between the parties, but the petitioner as mortgagee made a claim to recoup herself for the loss of 2 per cent of interest on the 2/5th share of the evacuee mortgagor from the non-evacuee mtortgagors and neither the Competant Officer nor the Appellate Officer decided this claim, making their orders subject to this claim of the petitioner leaving her to fight it out in an ordinary civil litigation.

(2.) While the claim proceedings were pending before the Competent Officer, the mortgage suit of the petitioner remained stayed under section 20 of the Act, which section reads -

(3.) At this stage there is just one argument by the learned counsel for the petitioner and that is that the learned trial Judge should have decided the question of revival or non-revival of the suit of the petitioner without discussing the merits of the claim of the petitioner, which be should have discussed and decided if the suit was revived. The reply on behalf of the non-evacuee mortgagors is that in view of the provisions of section 20 of the Act and other provisions of the Act what has been decided by the Competent Officer and on appeal by the Appellate Officer has been made final, thus disposing of the matter of litigation concerning the mortgage between the parties finally of which the result then is that there is no jurisdiction left with the Civil Court to revive a stayed suit asthat of the petitioner.