RAJA MOHAN MANUCHA Vs. MANZOOR AHMAD KHAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs in a suit to enforce a registered mortgage dated August 12, 1919, whereby a village called Mahona Poorab in the District of Sultanpur in Oudh was made security for the sum of Rs. 10,000 with interest at nine per cent with half-yearly rests. The grantor of the mortgage was Iltifat Ahmad Khan, the defendants' father, and the grantee was the plaintiffs' father Moti Lal Manucha. The deed contained a personal covenant to pay the interest half-yearly and to re-pay the principal at the end of three years. The suit was brought in the Subordinate Judge's Court at Sultanpur on August 9, 1934, by which time both of the original parties to the deed ha died. The plaint sought relief, both by sale of the mortgaged property and by enforcement of the covenant.

(2.) THE defendants by their written statement of November 30, 1934, maintained among other defences that the mortgage sued upon was void, having been made in circumstances which brought into operation para. 11 of the Third Schedule to the Civil Procedure Code. 11. (1) So long as the Collector can exercise or perform in respect of the judgment-debtor's immoveable property, or any part thereof, any of the powers or duties conferred or imposed on him by paragraphs 1 to 10, the judgment-debtor or his representative in interest shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector.... THE learned trial Judge sustained this contention. He refused the. plaintiffs a money decree upon the covenant on the ground that this cause of action had become barred by limitation. By his decree of August 2, 1935. he dismissed the suit with costs. An appeal by the plaintiffs to the Chief Court was dismissed on May 5, 1937, the learned Judges (Thomas and Zia-ul-Hasan JJ.) agreeing with the trial Court on both of the grounds of his decision. THEy were asked to give the plaintiffs relief under Section 65 of the Indian Contract Act, 1872. 65. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it. But the Chief Court refused to entertain this ground of claim because it had not been pleaded and was not taken in the memorandum of appeal. Accordingly they left the plaintiffs to seek this remedy by a separate suit.

(3.) NOW, the crucial date for the purposes of this appeal is August 12, 1919, when the mortgage in suit was executed by Iltifat. That deed recited the proceedings in execution of the Bank's decree and the sale of the villages Gadaryadih and Deokali: it stated that the sum of Rs. 110,000 was being borrowed by Iltifat from Moti Lal Manucha because Iltifat had to pay a proportionate share of the decretal amount, It has been suggested in argumentthat the money thus obtained may have been needed to make up the sum brought into Court on August 16, in order to set aside the sale. Whether this be so or not, the mortgage was in itself an open, honest and reasonable transaction, The parties and their advisers would appear to have known of the provisions of para. 11 of the third schedule, and it is quite probable, so far as their Lordships can judge, that they thought that the Collector's duties had come to an end as regards Mahona Poorab, or that by the sale on July 21 of the two other villages it had been exonerated under the order of the Collector from all claim in the execution proceedings.