PARBHU DAYAL Vs. LALDAS MAGANLAL

JUDGEMENT

(1.) This is an application by Pt. Prabhu Dayal under Order 39, Rules 1 and 2 find Section 151, Civil P.C. The facts that have been rise to this application may be briefly ntated. It appears that the applicant executed an equitable mortgage on 14 May 1930 in favour of Seth Lal Das for a large Hum of monoy. The properties hypothecated under this mortgage were situate within the United Provinces. On 9 October 1934 the applicant executed another mortgage in favour of Seth Lal Das and his wife. In this mortgage, some properties outside thin province were also included. The principal and interest due under the bond of 14 May 1930 formed part of the consideration of the latter mortgage. It was stated in the deed that in consequence of the execution of the second mortgage the first mortgage was satisfied and discharged. Under the terms of the mortgage deed the applicant was required to pay certain amount periodically on account of interest due under the mortgage. It is stated by the applicant, and this statement is not disputed, that the applicant paid the installments till April 1938. Since then the payment of interest has been withheld. The applicant states that he was advised that ho was paying higher rate of interest than what he was bound to do as an agriculturist according to the provisions of the Agriculturists Belief Act. He therefore called upon the creditors to render accounts to the applicant. As the creditors failed to render accounts a suit was filed by the applicant under Section 33 Agriculturists Belief Act, in the Court of the Civil Judge, Agra, on 5 March 1937. On the objection of the mortgagees the plaint was returned for presentation in the Court of the Munsif of Agra. The plaint was then presented in the latter Court on 10th February 1938. While this suit was pending in October 1938 the mortgagees brought a suit at Bombay for the enforcement of the mortgage of 1934. It is assumed for purposes of this application that the Bombay High Court has got jurisdiction to try the suit instituted by the mortgagees. The applicant made an application to the Munsif of Agra for the issue of an injunction restraining the mortgagees from proceeding with the Bombay suit. The Munsif rejected the application but the learned District Judge granted it. Ultimately the suit pending in the Court of the Munsif under Section 33, Agriculturists Belief Act, was dismissed. The applicant then filed an appeal from the decision of the trial Court in the Court of the District Judge which is still pending.

(2.) The injunction granted by the District Judge having come to an end with the termination of the suit, the applicant applied to the District Judge for the issue of an ad interim injunction. This application however was rejected. The applicant has filed a first appeal from order to this Court against the order of the District Judge refusing to grant injunction. This appeal has not been admitted yet. The applicant after filing the appeal made an application for the issue of a temporary injunction pending the disposal of the appeal. This was granted on 17 March 1939 by a learned Judge of this Court and notice was issued to the opposite party to show cause why the ex parte order granting a temporary injunction may not be confirmed. The opposite party has now appeared and contests the application of the applicant on several grounds. I have heard learned Counsel for the parties at considerable length and I now proceed to consider some of the points raised at the Bar.

(3.) Learned Counsel for the opposite party contends that the suit instituted by the applicant under the Agriculturists Belief Act is not maintainable as some of the properties hypothecated are situate outside the United Provinces. In support of this contention, reliance is placed on a Bench ruling of this Court reported in Wahiduddin V/s. Makhan Lal . In that case properties in Meerut and Delhi were hypothecated by an agriculturist. The mortgagor brought a suit under Section 33 of the Act. The learned Judges held that the suit was not maintainable as the mortgage was indivisible and some of the properties were outside this province to which the provisions of the Act did not apply. Learned Counsel for the applicant has attempted to distinguish this ruling. In my opinion it is not proper for me to express any opinion on the merits of the case. This is a question that will have to be considered later. It is urged by learned Counsel for the opposite party that the suit in Bombay is for the enforcement of the second mortgage, while the suit under 8. 33 of the Code refers to the mortgages of 1930 and 1934 both. It is urged that the mortgage of 1930 does not subsist while the suit with reference to the second mortgage is not maintainable in view of the ruling cited above. This again is a matter which will have to be deter, mined later if the appeal filed by the applicant is admitted. It may be mentioned that the ruling of the Bench would be binding on me as a single Judge. As stated above, I am not prepared to enter into the merits of the case.