BISHNATH SINGH Vs. BASDEO SINGH

JUDGEMENT

(1.) In a suit filed on foot of a mortgage effected by the appellants on the 13th May 1909, a preliminary decree for sale was passed on the 17 January, 1918, which was made absolute on the 20 December, 1919. The parties are members of an agricultural tribe.

(2.) When the decree was put under execution, an objection was filed by the judgment-debtors under Section 16 of the Bundelkhand Land Alienation Act (U.P. Act II of 1903), saying that the mortgaged property could not be sold in execution of a decree. The Court upheld that objection. The decree-holder then asked the Court to take proceedings under Section 9 of the said Act. That prayer was acceded to by the Court of first instance and the order of that Court was upheld by the lower Appellate Court.

(3.) The contention here is that no reference can be made under Section 9, Sub- section (3) of that Act after a decree has been made absolute. But that section contains no such limitation. All that it lays down is, that if a suit is instituted in any Civil Court on a mortgage, after the commencement of this Act, by a member of an agricultural tribe, the Court shall, if it finds that the mortgage is enforceable, refer the case to the Collector with a view to the exercise of the power conferred by Sub-sections (1) and (2) of Section 9. This power can be exercised at any stage i.e. either before a decree has been passed or made absolute, because under Section 16 the decree in such a case cannot be enforced by the sale of the mortgaged property and must be left out of account as if it had in effect never been passed. So long as the decree or mortgage subsists, the claim to recover the money or to enforce the mortgage also subsists; and a reference can be made to the Collector, who can refuse or alter the terms of the mortgage so as to bring it into accordance with the Act and make it conform to the limitation imposed thereby. The decision in Hanuman, Prasad Narain Singh V/s. Harakh Narain (1920) 42 All. 142, does not apply, because no reference under Section 9 wag there asked for. On the other hand the decision in Sheo Pragash Singh V/s. Radha Mohan Singh S.A. No. 1457 of 1920, supports the conclusion that the claim can be referred to the Collector, though it had nominally matured into a decree which has been since found to be unenforceable.