KHUN KHUN CHAUBE Vs. MAHABIR CHAUBE

JUDGEMENT

(1.) I have had the advantage of reading the judgments of my two brothers and need therefore say little, except that I entirely agree with their conclusion.

(2.) As regards the first question whether the case is one which falls within the scope of Section 115, Civil P.C., in the Full Bench case, Raghubir Singh v. Mulchand , Sulaiman C.J., took the view that where a Court decides a matter without reference to a section of the Act which is applicable to that matter, there is a material irregularity. The position in the present case is that if the Court below based its decision on the Regulation of 1798 then it must necessarily consider Section 5 of the regulation as well as Section 2. If it has come to a conclusion based upon Section 2 which could not have been reached if the existence of Section 5 had been recognised, then the Court below committed a material irregularity in the exercise of its jurisdiction. If, on the other hand the Regulation of 1798 was not applicable at all, then the position is that, whereas the trial Court decided the matter in accordance with law, the lower appellate Court has decided it in the light of nature and in disregard of the existing law on the subject. In so doing, it seems to me that the Court clearly acted with material irregularity. I am not impressed with the argument that the Court could not have acted with material irregularity when it followed the decision of one of the Judges of the Division Bench in Asharfi Lal V/s. Zamir Fatima Bibi . That was a case in which the two Judges pronounced separate judgments and the learned Judge of the Court below should have observed that the other Judge did not base his conclusion on the Regulation of 1798 at all. It would follow that the remarks of Bennet J. must be obiter and the Judge could scarcely be bound to follow them in the particular circumstances.

(3.) As regards the question on the merits, I am in entire agreement with the view that Regulation. 1 of 1798 was not substantive law but purely adjective providing a procedure applicable to a particular type of cases. It was not, in any case, applicable to the mortgage by conditional sale effected by the document in suit and more-over on the enactment of the Transfer of Property Act this Regulation ceased to exist entirely. It was not a Regulation by virtue of which any rights came into existence which became vested in the persons for whose benefit it had been enacted. Under the document in suit a certain date was fixed on which the mortgagor must repay the amount of the mortgage. He could not do so before that date. It follows that that date would be the date from which the limitation of 60 years for the redemption of the mortgage would begin to run. As has been pointed out the date fixed was not fixed in an arbitrary fashion but because that was the date which would be convenient for the delivery of possession if the mortgagor were in a position to redeem.