MOHAMMAD AKBAR KHAN Vs. MIAN MUSHARAF SHAH

JUDGEMENT

(1.) This is an appeal from the Court of the Judicial Commissioner, North-West Frontier Province, which reversed a decree of the District Judge of Peshawar. At the outset their Lordships desire to call attention to the unsatisfactory way in which the record in this case has been prepared. Many documents to which reference has necessarily been made have not been printed, and considerable difficulty has been encountered in ascertaining the facts and the nature of the points to be considered. In future, their Lordships will have to consider whether they should hear a case presented in so slovenly a manner until it has been put into proper shape. The time of their Lordships' Board should not be occupied in unravelling matters which it is the duty of the parties to present in an intelligible form. The facts of the case, as their Lordships understand them, are as next narrated.

(2.) In December, 1914, the appellant, being then about to proceed on war service, granted a number of leases of his lands to various persons. Among these leases was one contained in a registered dead dated 15th December 1914, whereby a lease of certain lands was granted to respondent 2, who is hereafter called the debtor, for five years, at a yearly rent. By Cl.12 of the lease the debtor hypothecated certain lands of his own, including 250 kanals in the area of Maho Dheri to secure the rent, and it was provided that the debtor should have no power to sell or mortgage the hypothecated land during the period of the lease, and that the appellant could recover his lease money by sale or mortgage of such land. The rent fell into arrear, and on 25 January 1918 the appellant obtained against the debtor, in the revenue Court before the Assistant Collector, a decree for Rupees 1,484-8-0, together with costs and future interest.

(3.) In April 1932, after the decision of the Judicial Commissioner, which is the subject of the present appeal, the appellant secured an alteration in the decree of 25 January 1918 by incorporating therein some additional words which had appeared in the antecedent judgment to the effect that the property hypothecated by the lease should be made liable for the payment. The plain or other initiatory proceeding in the suit which resulted in the decree of 25 January 1918 has not been included the record. Their Lordships are not satisfied that the revenue Court would have had any jurisdiction to entertain suit framed as a suit to enforce the hypothecation. At any rate, the present appeal must, in their Lordships' judgment, be dealt with on the footing that the suit was to recover a money debt, and that the decree in question was a money decree. It was in fact treated throughout as a money decree, and it will be hereafter referred to as the first money decree. By way of enforcing the first money decree, the appellant obtained from the Assistant Collector on 6 August 1918 a prohibitory order restraining the debtor from transferring the property in the annexed schedule by sale, gift, or otherwise. The schedule is not printed in the record, but it seems to be accepted by the Courts below that it referred to or included the 250 kanalas hypothecated by the lease.