SUBEDAR MIAN Vs. SHEO SHANKAR MISSIR

JUDGEMENT

(1.) THIS appeal arises out of an action for redemption. The plaintiff is the appellant and the only question which arises is whether the defendant mortgagee was liable to account for rents paid by the plaintiff whilst the defendant was in possession. The District Judge in appeal Rame to the conclusion that the defendant was not so liable, because (to use his own words) this deduction cannot be allowed in an action or redemption between the mortgagor and mortgagee; to allow it would be to allow a joint trial to two distinct causes of action. The learned Judge in the Court below seems to be unaware of the Civil P.C., Order 2, Rule 3. In any event, the plaintiff could have claimed redemption and he could have joined with that claim a claim for rent paid by him to the defendant's use. He would have been barred of course in that case in respect to a claim for anything more than three years under the Limitation Act. The real question that has been argued is whether the defendant is liable to deduct from the amount due by him to the plaintiff those sums which had been paid by the plaintiff for rent. It is contended that there could be no such account and reliance is placed chiefly on Raghubar Narayan V/s. Mohit Narayan Jha AIR (1929) Pat 87.

(2.) THAT was a case of malikana dues. It appears that the Courts were unable to come to the conclusion whether malikana was due and to whom; indeed there seems to be no definite decision on that question. James J., delivering the judgment of the Court, referred to an authority reported in Fakir Muhammad Khan V/s. Ali Sher Khan (1911) 10 IC 113 in which it was found that this fact gave no ground for taking accounts. The learned Judge (James J.) prefaced his observation by saying: In the present case we are asked to declare that the mortgagee is liable to account not because of an; default affecting the mortgagors, but on the ground that they have obtained as profits the money which ought under the deed to have been paid to the malikanadars. The learned Judge then proceeds to observe: The mortgagee was entitled to all the profits his could make out of the property, and it happened (sic) been forced to pay, be can set off those sums against his liability; if, on the other hand, there was no such obligation, he would be entitled to three years rent as a money decree against the defendant under Section 70, Contract Act. There is no liability on the mortgagee to pay interest. Costs of this appeal will abide the result of the hearing in the Court below.