BHASKARMALLA BARUA AND ORS. Vs. JOYNARAIYAN CHENEHIRAM FIRM

JUDGEMENT

(1.) THIS is a First Appeal front the judgment and decree of the learned Subordinate judge, L.A.D., dated 21 -9 -49, by which he dismissed, the plaintiff's suit with no order as to costs.

(2.) MR . Lahiri for the respondent has taken a preliminary objection to the effect that an appeal in this case does not lie to the High Court, but to the District Court. His contention is that the suit brought by the plaintiff is a suit for redemption of the mortgaged property notwithstanding the fact that the plaintiff has described the suit as a suit for a declaration of title and possession and prayed for such a declaration and relief as to possession in the event of the Court coming to the conclusion that the mortgage debt must be deemed to be discharged by virtue of Section 8(2) of the Assam Debt; Conciliation Act. Mr. Lahiri has drawn our attention to the prayer clause which is appropriate only to a suit for redemption of the mortgaged property.

(3.) MR . Ghose for the appellant, however, contended that the suit was a suit for declaration of title and khas possession in view of the fact that the mortgage debt must be deemed to have been discharged in virtue of the Assam Debt Conciliation Act. The contention is based upon a lack of appreciation of the difference between the expression 'redemption of a mortgage' and redemption of the mortgaged property. In a case reported in 'Jankl Nath v. Pramathe Nath' : AIR 1940 PC 38 , their Lordships of the Privy Council observed: