PANDIT MOTIRAM MANHURAM Vs. CHIRONJILAL SUKHLAL

JUDGEMENT

(1.) This is the Plaintiffs' appeal against the dismissal of their claim by Shri G.C. Saksena, Second Additional District Judge, Bilaspur in Civil Suit No. 6 -A of 1955 decided on 22 -7 -1955.

(2.) THE Respondent executed a deed of mortgage by conditional sale dated 3 -7 -1948 (Exh. P -1) in favour of the Appellants for a consideration of Rs. 16,000, whereby eight annas village share of mauza Pondi, along with 147.64 acres of sir and 22.69 acres of khudkasht lands and a house were mortgaged with stipulations that interest was to be charged at twelve annas per cent. per month, and the whole of the amount with interest was repayable within two years, in default of which the mortgagee was to become entitled to foreclose the property. As per recitals of the deed, the debt was incurred in order to redeem the previous mortgage debt of one Jagannath Prasad amounting to Rs. 12,154 in respect of this very property, and to repay some other debts.

(3.) THE Respondent's defence was that the order of the Claims Officer was not without jurisdiction, as the debt was not an excluded, but a secured debt, and, therefore, the only remedy was one provided by Section 28 of the Act and not by way of a suit. The plaint, if treated as an application under Section 28 of the Act, was said to be barred by time, as not having been filed within one year of the date of the order of the Claims Officer. The learned trial Judge held that the debt was a 'secured debt' and not an 'excluded debt', and accordingly the order of the Claims Officer was held to be within jurisdiction. The plaint was treated as an application under Section 28 of the Act, but it was rejected as being barred by time. Hence the present appeal.