THAKUR SHANKAR BAKSH Vs. DYA SHANKAR

JUDGEMENT

(1.) ON the 6th of December, 1853, Bhup Singh, the grandfather of the Appellant, describing himself as zemindar and talukdar of Palm and Golaria, &c, by an agreement of that date, mortgaged three villages in pargana Maurawau, in Oudh, to the Respondent Dya Shanlcar for three years for Rs. 7441. 6a., the mortgagee to have the profits and produce and being put in possession. And the mortgagor stipulated that he would repay the mortgage money in Khali Fasl, and redeem the mortgaged villages, and, "unless he shall have paid the mortgage money in full to the said mortgagee he shall not redeem the villages; at the time the mortgage money shall be paid up by the declarant (mortgagor) he shall have the mortgaged villages released in Khali Fasl."

(2.) ON the 6th of September, 1883, the Appellant brought a suit in the Court of the District Judge of Lucknow against the Respondent to redeem the mortgage. Other persons were made Defendants as having become entitled to a half share in the right of the mortgagee, but the case may be treated as if Dya Shankar had remained sole mortgagee. The plaint stated the mortgage; that the three years expired on the 6th of December, 1856, and although the villages were included in the talokdari sanad of Dya Shanlcar, yet, under the terms of the mortgage deed and Section 6, Act I. of 1869, the Plaintiff was entitled to redeem; that under Section 83, Act IV. of 1882, the Plaintiff had deposited the mortgage money in Court, but on the 14th of June, 1883, the Khali Fasl, the Defendants refused to redeem the property. The written statement of By a Shankar stated that "on the 23rd of June, 1864, Bhup Singh, Plaintiff's ancestor, filed against the Defendant a regular suit for redemption of his property, and continually absented himself; on the death of Bhup Singh, which took place about the end of 1875, the Plaintiff succeeded him, and he also failed to prosecute the case, so much so that on the 18th of July, 1868, the claim was dismissed for want of prosecution, under Section 114, Act VIII. of 1859, in the presence of Defendant and absence of Plaintiff." It was further stated that on the 7th of August, 1868, the Plaintiff filed an application for rehearing, which was rejected on the 13th of August; that another application for re-hearing was filed on the 15th of September, 1868, which also was rejected on the 17th of March, 1871; that an appeal was then preferred in the Court of the Commissioner, which was also rejected.

(3.) BHUP Singh had, as was alleged, brought a suit in the Settlement Court on the 23rd of June, 1864, and the order, as it is called, of the 18th of July, 1868, appears to have been made in consequence of the Financial Commissioner, on the 29th of May, 1868, calling the attention of the Settlement Officer to the provision in Act VIII. of 1859, where the Plaintiff does not attend to the process of the Court. The Settlement Officer appears upon that to have given notice to the parties, and the judgment says that "the 18th of June was fixed for the hearing, on which clay Plaintiff applied for a month's delay, it being the entering into engagements with tenants, and the Defendant's agent agreeing to the delay, it was granted, and this day, the 18th of July, fixed for the hearing, but Plaintiff is not present or represented by any accredited agent." At the foot of the judgment is the word "decree" and the signature of the Settlement Officer. There is also in the proceedings a paper in a tabular form, signed by the Settlement Officer, which seems to be the record of the decree. In a column headed "Particulars of Case" are the words "Plaintiff's suit for redemption of entire village Khanpur by right of inheritance and possession up to 1270 F. dismissed on default." The words "dismissed on default" were strongly relied upon before their Lordships as shewing that the suit was dismissed under Section 110, but in another column it is stated that the decree was in favour of the Defendants. The proceeding of the Settlement Court is recorded in such a loose way that no certain inference can be drawn from it as to the section under which the decree was made. The matter, however, did not rest there. On the 7th of August, 1868, the Plaintiff applied that the suit might be reinstituted under Section 110. This application was rejected on the 13th of August. On the 15th of September, 1868, the Plaintiff made an application to set aside the order of the 18th of July. The order upon this application was not made until the 17th of March, 1871. The cause of this delay does not appear. The application was refused by the Settlement Court because it was not made within thirty days after the 18th of July. The Plaintiff then appealed to the Commissioner of the Rae Bareli Division, who dismissed, the appeal, saying "that the order of the 13th of August ought to have been appealed." The explanation of this will be found in Section 119. It has been seen that when an order is made under Section 110 there is no appeal; the Plaintiff is at liberty to bring a fresh suit. But Section 119 provides that in all cases of judgment against a plaintiff by default (that is cases under Section 114) he may apply within thirty days from the date of the judgment for an order to set it aside, and that in all cases in which the Court shall pass an order under that section for setting aside a judgment the order shall be final, but in all appealable cases in which the Court shall reject the application an appeal shall lie from the order of rejection to the tribunal to which the final decision in the suit would be appealable. Thus the Plaintiff, by appealing against the order of the 17th of March, 1871, treated the application of the 15th of September, 1868, as an application to set aside an order made under Section 114, and when the Commissioner said that the order of the 13th of August ought to have been appealed he must have considered that the order of the 18th of July, 1868, was made under that section. Indeed the objection that it was made under Section 110 does not seem to have been taken in the Lower Courts. No issue was framed by the District Judge distinctly, if at all, raising it, and there is no notice of it in his judgment. The Appellate Court says the suit was dismissed under Section 114, and the whole of the judgment assumes that it was. Their Lordships are satisfied that the dismissal of the suit was under Section 114.