SANABHAI NATHABHAI Vs. GORDHANDAS

JUDGEMENT

(1.) THIS is a civil revision application of the original defendant in civil suit No.83 of 1943 filed in the Court of the Joint Civil Judge (Junior Division) at Nadiad. The plaintiff filed the suit on the allegation that an ostensible sale deed for Rs. 9,000 executed by him on April 6, 1942, was really a mortgage. He alleged that he was paid only Rs. 3,000 in cash and Rs, 5,000 had been credited towards past dues. He disputed his liability for the amount mentioned in the deed. The prayers were: (1) to declare that for the reasons stated above, the fields mentioned in paragraph 1 of the plaint had been mortgaged by the plaintiff to the defendant and for which the defendant had obtained a document on April 6 in the form of a sale, but that the same was in reality a mortgage; and (2) to take an account of the mortgage and the produce of the fields, since the said fields were mortgaged on April 6, 1942, under the Dekkhan Agriculturists' Relief Act, 1879, and ascertain the amount payable by the plaintiff to the defendant. There were prayers for further and other reliefs, and for costs.

(2.) AN objection was raised to the jurisdiction of the Court. It was decided against the defendant. The defendant filed this civil revision application which first came before Mr. Justice Weston. Chunilal Kevalram v. Ramchandra Yesaji (1941) 44 Bom. L. R. 278, Harendra Shankar v. Khiali Ram [1940] All. 762, and Babaji v. Hari (1891) I. L. R. 16 Bom. 351 were pointed out to the learned Judge and it was thought that there was some conflict of views in these decisions. The learned Judge, therefore, instead of disposing of the matter, referred it to a bench. When the matter came before us on Thursday last, the question whether Babaji v. Hari was rightly decided or not was directly put for our consideration. In view of that contention, it was thought that the application should be heard by a bench of three Judges, and the matter has thus come before us today.

(3.) THE next question is about the words used at the end of para 1 of Section 15d. In our opinion those words also do 'not help the applicant. THE words of that paragraph clearly indicate that the suit under consideration is one " for an account of the amount of principal and interest remaining unpaid on the mortgage. " THE last words " and for a decree declaring that amount" only show what must follow from a suit for accounts. THE authority taking accounts cannot end its work except by striking a balance and holding that a certain amount is due by one party to the other. THE word " declare " is therefore not used in the section in a technical sense. THE words of the section only indicate that in such a suit the decree shall ascertain the amount which is due. In our opinion, those words do not make a suit of the nature contemplated by Section 15d (z) a suit for a declaration within the meaning of sch. 2, Article 17 (3) of the Court-fees Act. In the same way, as this is clearly a suit for accounts, the general residuary Sub-article 17 (6) is inapplicable.