BRAHM DUTT AND ANR. Vs. DIP NARAIN

JUDGEMENT

(1.) THIS is a revision arising out of an application under Section 12 of the U.P. Agriculturists Relief Act by the mortgagor for redemption of property. The suit was decreed by the trial court on the finding that the mortgage money lad been paid up by the usufruct of the property. The decision of the trial court was made on 21 -9 -1951. An appeal was preferred to the court below and the appeal was decided on 17 -3 -1953. The appellate court affirmed the decision of the trial Court.

(2.) IN revision it was contended on behalf of the applicants who were the mortgagees that the court below had no jurisdiction to pass the decree it has, namely, a decree for redemption by virtue of the change in law brought about by the passing of the UPZA and LR Act of 1950. It was in the alternative contended that the appellate court acted with material irregularity in the exercise of its jurisdiction because the court below did not apply the law which was applicable at the time when the appeal was decided. It was further contended that by Section 339 of the UPZA and LR Act the Agriculturists Relief Act was repealed and as such it was no more available for seeking the redemption of the mortgage in suit. It was argued by Mr. Sapru that at the time when the decision of the lower appellate court was made the ZA Act was in force, for the Act came into force on 1 -7 -1952 while the decision of the lower appellate court was made on 17 -3 -1953. Under Section 21(1)(d) of the ZA Act the mortgagee in suit became an Asami because the land in question belonged to the person who fell in one of the clauses mentioned in Clauses (b)to (e) of Sub -section (1) of Section 18. The land in question was Sankalp land and therefore it fell under Section 18(1)(c). There is no doubt that if the UPZA and LR Act applied then the contentions put forward by Mr. Sapru were right. The question which has to be determined is whether the Act applied. It has been held in Lachmeshwar Prasad Shukul v. Keshvar Lal Chauahuri, AIR 41 FC 5 that on appeal there is a rehearing and therefore "in moulding" the relief to be granted in the case in appeal, the appellate court is entitled to take into account even the fact and events which have come into existence after the decree appealed against." It was further pointed out that the appellate court is competent to take into account legislative changes since the decision was given, and that the powers of the appellate court are not confined to see whether or not the lower court's decision was correct according to law as it stood at the time when the decision was given. This view of the Federal Court was followed in this Court in the case of Niranjan Lal Bhargava v. Mt. Ram Kali Devi : AIR 1950 All. 396. In Niranjan Lal's : AIR 1950 All. 396 case a Bench of this Court took into account a change in the law and gave effect to that change. On the aforequoted decision, it is clear to me that the lower appellate court was not only competent but it was its duty to apply the law to the case as it stood at the time when the appeal was argued before it. The court below has omitted to do so and therefore the court below certainly has, in my view, acted with material irregularity in the exercise of its jurisdiction. The error that has been committed by the court below is not merely an error of law. It is, as I have already pointed out, some thing more. It is an error which has affected the jurisdiction of the court in essence and therefore, in my view the decision of the court below is revisable under Section 115 of the Code of Civil Procedure.

(3.) I accordingly allow this application in revision, set aside the decision of the courts below and dismiss the Plaintiff's application for redemption under Section 12 of the Agriculturists Relief Act, but under the circumstances of the case, I think it just and proper to direct that the parties to the cause bear their own costs thereof.