DAS GOPILAL Vs. MOTI BHOGIRAM

JUDGEMENT

(1.) THIS second appeal arises out of a suit for the sale of agricultural holding which was mortgaged by the respondent's grandfather Sitaram (now dead) in favour of the plaintiff under a deed of September 29, 1943, for Rs. 2,100. This suit was instituted on April 29, 1954, in the Court of the Civil Judge, First Class, Gwalior. The defendant challenged the jurisdiction of the civil Court. In that connection it was also contended by the defendant that earlier a suit had been instituted by the mortgagee in the Court of the Tahaildar which was eventually dismissed for default and, for that reason also, this suit was barred. Both the Courts below have taken the view that the suit being entertainable in the revenue Court under section 275 of the Quanoon Mal, Gwalior State, a civil suit was barred.

(2.) NOTHING in the section shall effect the validity of a mortgage properly and legally executed prior to the commencement of this Act.

(3.) THEN it is contended by Shri Saxena that the previous revenue suit having been dismissed for default the present suit is barred. Neither the Quanoon Mal nor the Zabta Diwani of Gwalior State (which was applicable by virtue of section 505 of the Quanoon Mal) contained any provision corresponding to the bar provided in Order 9, rule 9 of the Code of Civil Procedure, 1908. On the contrary, the Gwalior Zabta Diwani expressly enabled the plaintiff to institute a second suit on the same cause of section, subject to the statute of limitation. However, since I held that the civil Court has no jurisdiction to hear the suit, it is not necessary to decide the second point raised by Shri Saxena. It will be open to the defendant to agitate it in the revenue Court.