KISHORI MOHAN BANIK Vs. MAIJANNESSA BIBI

JUDGEMENT

(1.) This Rule raises questions regarding the interpretation of Section 26-G, Ben. Ten. Act, and the powers of this Court to interfere in revision under Section 115, Civil P.C. I have little doubt, as I have said once before, that the intention of the Legislature was to provide a cheap and expeditious remedy in cases where there is no real dispute as to the nature of the document. The right to make an application assumes that there is in existence a usufructuary mortgage. If the intention of the Legislature was that this question should be finally decided in summary proceedings of this nature, one would expect that there would be some provision providing an appeal and that Revenue Officers would not be empowered at all. Whatever however the intention might have been, it is necessary to examine the effect of the language actually used in the Section The important words are these:

(2.) Sub-section 5: The mortgagor shall thereupon become entitled to possession of the mortgaged holding and may, if he is not forthwith given possession, apply to the Court or to a Revenue Officer to be restored thereto.

(3.) Sub-section 6: The Court or Revenue Officer to whom such art application is made may...pass an order restoring the possession of the land mortgaged to the mortgagor and such order shall have the effect of a decree of a Civil Court.