TUB COLLECTOR OF MUTTRA Vs. BALDEO SINGH

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by Baldeo Singh and others- against the Collector of Muttra as Manager of Court of Wards of the estate of Kunwar Muhammad Etmad All Khan. It is stated in the plaint that the plaintiffs are the mortgagors, of some property in dispute and that the defendant is the mortgagee; that the mortgage was effected on the 11th of November 1870; that the plaintiffs are the heirs of Musammat Radha, the original mortgagor, and the defendant is the representative of the original mortgagee; that the defendant is in possession of the property; that the plaintiffs deposited the mortgage money in the Court of the Munsif of Hathras for payment to the defendant under Section 83, Act IV of 1882, but the defendant refused to receive the money; that the plaintiffs consequently brought a suit, but owing to some technical defect that suit was struck off; that the plaintiffs again sent a formal notice to the defendant, but the defendant paid no heed to it. The relief asked for is that the plaintiffs be allowed to redeem the property and that the costs may be allowed. The defence filed was to the effect that the property in dispute was transferred in favour of Muhammad Irshad Ali Khan by way of conditional sale; that the plaintiffs never paid the money within the time stipulated by the deed; that the mortgagee became the sole owner of the property; also that on the 3Cth May 1874, Muhammad Irshad Ali Khan filed an application under Section 8 of Act XVII (sic) Regulation No. XVII of 1806, for getting the conditional sale declared absolute; that a notice giving a term of one year was formally issued in the name of Baldeo Singh and an order absolute for foreclosure of the property was passed by the District Judge of Aligarh in favour of Muhammad Irshad Ali Khan. The Court of first instance dismissed the suit. An appeal was taken and was heard by the third Additional Subordinate Judge of Aligarh. That Court allowed the appeal, decreed the plaintiffs claim on payment of Rs. 500 with two months from the date of the decree.

(2.) THE defendant comes here in second appeal and contends that the lower Appellate Court has made a new case for the plaintiffs; that the foreclosure proceedings in 1875, which were not objected to by the plaintiffs predecessors, were final and are a bar to this suit; that the lower Appellate Court should have presumed that the preliminaries required by. Bengal Regulation XVII of 1806 were duly complied with under the circumstances of this case. After hearing both parties, I hold that a new case was not made out for the plaintiffs; at any rate the plaintiffs had sufficiently, indicated the nature of their case. With regard to the foreclosure proceedings, there are abundant precedents which show that unless evidence is given to show that the preliminaries required by the Bengal Regulation XVII of 1806 have been duly followed step by step, a mere rubkar or a mere notice by the Nazir is not sufficient proof, See Madho Singh v. Mahtab Singh 3 N.W. P. H. C. R. 325 and Badal Ram v. Tai Ali 4 A. L. J. 717: A. W. ST. (1907), 266. THE Appeal is dismissed with costs, including in this Court fees on the higher scale.