HARI SINGH Vs. L DINA NATH

JUDGEMENT

(1.) THIS is a second appeal directed against an order of the learned District Judge Jammu confirming an order of the trial Court whereby it had held that the present suit is not within it jurisdiction as a Court constituted under the Restitution of Mortgaged Property Act. The facts that have given rise to this appeal, briefly stated, are that the plaintiff brought a suit against the defendant for the recovery of a sum of Rs. 6177/8/ -. The defendant had besides binding himself by a personal covenant to pay the debt, executed a simple mortgage pledging some of his immoveable property as a collateral security. The plaintiff in this case has brought the present suit on the personal undertaking of the defendant and has abandoned his rights accruing to him as a result of the contract of hypothecation.

(2.) THE defendants learned counsel has strenuously argued that the present suit cannot be taken cognizance of by a Civil Court and that the proper forum for bringing the present suit is a Court constituted under the Jammu & Kashmir Restitution of Mortgaged Property Act, hereinafter called the said Act. In support of his argument, he has drawn our attention to S.2 of the said Act which runs as follows:

(3.) REVERTING to the finding of the trial we might state that the very name of the said Act, i.e., the Restitution of the Mortgaged Property Act would suggest such an interpretation as has been arrived at by the trial Court. The word restitution, according to the dictionary meaning, would mean the act of putting: a person in possession of some property. Now in a simple mortgage the possession always remains with the mortgagor. No question of restitution or restoration would arise in this case. Under S. 4 of the said Act the Government has; power to constitute Courts under the said Act and empower a Wazir Wazarat, a subordinate Judge or some other judicial officer not below the rank of a Munsiff to hear cases under the -said Act. An officer so empowered shall be deemed to be a Court under the said Act. Under S. 5