MOHAMMAD FIAYAZ KHAN Vs. LALA PRITAM SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for the recovery of Rs. 13,938-8-0 on account of principal and interest, or whatever excess amount is found due by the defendant on accounting, together with future and pendente lite interest and costs of the suit upto the day of realization. The plaintiff mortgaged with possession under a possessory mortgage deed dated 5th Nov., 1932, his entire property in villages Paraura and Muhkampur for Rs. 60,000.00 to Roramal father of the defendant. Under the conditions of the mortgage it was agreed upon that the interest would be paid at the rate of 6 per cent. per annum and that the mortgagee would be entitled to get Rs. 200.00 annually as the costs of collection. It was stated in the mortgage deed that at the time of the mortgage the net profits from these two mortgaged villages, which were put in possession of the mortgagee, after remission of rent and payment of Government revenue, was Rs. 5,938-11-5 per annum. It was further stated that the mortgagee would be liable to pay to the mortgagor, after deducting Rs. 3,600.00 per annum as interest and Rs. 200.00 per annum as costs of collection of rent, the net profit of Rs. 2,138/11/5 per annum.

(2.) On the 15th of Nov., 1935, an application under Sec. 4 of the U. P. Encumbered Estates Act was made by the plaintiff-debtor. That application was forwarded in due course by the Collector to the Special Judge First Grade. Before the Special Judge written statements were filed by the debtor and also by the creditor under the provisions of the U. P. Encumbered Estates Act. In the Debtor's written statement the nature and extent of the landlord's proprietary rights in the land, and the nature and extent of the land-lord's property which was liable to attachment and sale under Sec. 60, C.P.C. exclusive of his proprietary rights in land, had been specified in terms of Sec. 8 (1) (b) and (c) of the U.P. Encumbered Estates Act. In those particulars the profit accruing out of the estate for the period 1346 to 1351F, which period was subsequent to the date of the making of the written statements by the debtor and the creditor, had not been stated and could not have been stated "as property liable to attachment and sale under Sec. 60, C. P. C." Before the Special Judge a compromise signed by the creditor and by the debtor applicant had been made on the 30th of April 1936 which is Ex. 12 on the record and is printed at pp. 24 to 26 of our paper book. That compromise, inter alia, stated that Rora Mal the mortgagee in his capacity as a mortgogee had been in possession of the property mortgaged since the date of the mortgage, subject to the conditions mentioned in the mortgage deed and had been making collections and assessment. It contained certain other terms, but it did not specify what sum was due and legally recoverable from the mortgagor to the mortgagee on the date of the making of the application under Sec. 4 of the U. P. Encumbered Estates Act, which was the crucial date because of the provisions of Sec. 14 (2) of the U. P. Encumbered Estates Act. That Sec. provides that the Special Judge shall examine each claim and after hearing such parties as desire to be heard and considering the evidence, if any, produced by them, shall determine the amount, if any, due from the landlord to the claimant on the date of the application under Sec. 4. Upon the footing of the compromise Ex. 12 no decree was prepared by the Special Judge in favour of Rora Mal the creditor. On the 16th of Aug. 1942, the Special Judge came to notice that the compromise of the 30th of April, 1936 could not be made the subject of a decree and consequently he passed an order to the effect that it could not be treated as adjustment of a claim and the compromise therefore stood abrogated and he would proceed to determine the amount which was legally recoverable on the date of the making of the application under Sec. 4. Meanwhile Rora Mal died and his son Pritam Singh was brought on the record in his place. On the 24th of March, 1944, when the Special Judge proceeded to determine the claims, the pleaders of the parties made a statement which is Ext. A-7 on the record printed on page 39 of the paper book. The statement was to the following effect:-

(3.) This decree, in view of Sec. 14 (7) (b) (i), was a simple money decree. Under Sec. 35 of the U. P. Encumbered Estates Act, if at any time after the decree granted by the Special Judge has been sent to the Collector under the provisions of Sec. 19 of the Act any person entitled to possession of any property under the provisions of this Act applies to the Collector to be put in possession of such property the Collector shall deliver possession of such property to him. After the simple money decree had been passed in favour of Pritam Singh the Creditor, the debtor applicant Mohammad Faiyaz Khan became entitled to possession over the property in terms of Sec. 35 of the Act.