KISHORI LAL Vs. KAMPA DEVI AND JAGANNATH

JUDGEMENT

(1.) The learned District Judge was, in our opinion, mistaken when, at the conclusion of his judgment, he held that he was bound by the finding arrived at in the trial court, that is to say, by the court of first instance, on the question of the consideration for the mortgage deed in suit. The question turns on the wording of Section 3, proviso (3), of Act No. XXVI of 1917. When the learned District Judge, by his order of the 27th of April, 1918, granted the plaintiff s application for review, the plaintiff s appeal against the decree of the trial court dismissing Ms claim for a decree for sale on the mortgage and granting him only a simple money decree, became once more a pending appeal on the file of the District Judge of Meerut. We are not at all certain from the form of the order before us that this fact was fully realized in the court below. The order itself is headed as being an order in a miscellaneous case and the learned District Judge begins his judgment by describing the matter before him as application for review of judgment under Act No. XXVI of 1917, He is certainly wrong there, as the application for review of judgment had been granted by his predecessor on the 27th of April, 1918. What he had before him was the appeal itself for decision on the merits and on any plea that might be raised before him by either of the parties. The position then was. that the trial court had found in favour of the plaintiffs on every point except as regards the formal execution of the deed of mortgage. That point the court was now bound to decide in favour of the plaintiff under Act XXVI of 1917, but the mere filing of the appeal had opened a door to the defendants to support the decision of the trial court on any point which had been decided against them. The order under appeal shows that they actually tried to do this, for they asked the District Judge to reconsider the finding on the question of payment of consideration and to record a new finding in their favour. The learned District Judge seems to have taken this point into consideration and to have discussed it, but we cannot treat his remarks on the point as equivalent to the recording of a finding, in view of the fact that he goes on to say that he holds himself bound by the original finding of the Subordinate Judge. That he was not so bound is, in our opinion, clear for two reasons. When the review was granted by the District Judge it was a review of his order dismissing the appeal. The decision of the " former court," referred to in proviso (3) to Section 3 of Act XXVI of 1917, was the decision of the District Judge, the court) of first appeal, and not that of the Subordinate Judge, the original trial court.

(2.) Moreover, the question of the payment of consideration for this mortgage had not been finally determined when an appeal was brought against the decree of the trial court by the plaintiff. It was an issue which required to be determined in the appellate court after the question of execution had been decided in favour of the plaintiff. We have come to the conclusion that the proper way for us to deal with this matter is to remit an issue on the question of consideration to the, lower appellate court s5 as to secure a clear finding. The issue then is as follows: Was the consideration for the mortgage-deed in suit actually paid, and if so, was it such as to bind the interests of Jagan-nath s son in the property mortgaged?

(3.) Ten days will be allowed for objections after return of finding.