Judgement

Appeal (No. 68 of 1939) from a decree of the Chief Court (May 5, 1937) which affirmed a decree of the Additional Subordinate Judge, Sultanpur (August 2, 1935).

Law. Rep. 70 Ind. App. 1 ( 1942- 1943) Babu Raja Mohan Manucha V. Babu Manzoor Ahmad Khan 71

This was an appeal by the plaintiffs in a suit to enforce a registered mortgage, dated August 12, 1919, whereby a village called Mahona Poorab, in the district of Sultanpur in Oudh, was made security for the sum of Rs. 10,000, with interest at nine per cent, with half-yearly rests. The grantor of the mortgage was Iltifat Ahmad Khan, the defendants father, and the grantee was the plaintiffs father, Moti Lal Manucha. The deed contained a personal covenant to pay the interest half-yearly and to repay the principal at the end of three years. The suit was brought in the Subordinate Judges Court at Sultanpur on August 9, 1934, by which time both of the original parties to the deed had died. The plaint sought relief, both by sale of the mortgaged property and by enforcement of the covenant.

The defendants by their written statement of November 30, 1934, maintained, among other defences, that the mortgage sued upon was void, having been made in circumstances which brought into operation para. 11 of the Third Schedule to the Code of Civil Procedure " 11.—(1.) So long as the Collector "can exercise or perform in respect of the judgment-debtors "immovable property, or any part thereof, any of the powers "or duties conferred or imposed on him by paragraphs 1 to 10, "the judgment-debtor or his representative in interest shall "be incompetent to mortgage, charge, lease or alienate such "property or part except with the written permission of the "Collector

The facts appear from the judgment of the Judicial Committee.

The trial judge sustained the defendants contention. He refused the plaintiffs a money decree on the covenant on the ground that that cause of action had become barred by limitation. By his decree he dismissed the suit, with costs. An appeal by the plaintiffs to the Chief Court was dismissed, the learned judges (Thomas and Zia-ul-Hasan JJ.) agreeing with the trial court on both of the grounds of his decision. They were asked to give the plaintiffs relief under s. 65 of the Indian Contract Act. By that section " When an " agreement is discovered to be void, or when a contract "becomes void, any person who has received any advantage "under such agreement or contract is bound to restore it, or "to make compensation for it, to the person from whom he "received it.1

The Chief Court, however, refused to entertain that ground of claim because it had not been pleaded and was not taken in the memorandum of appeal. Accordingly they left the plaintiffs to seek that remedy by a separate suit.

The plaintiffs now appealed to His Majesty in Council. By their petition of appeal under O. 45, rr. 2 and 3, and by their case, they contested the findings of the courts in India both as regards the invalidity of the mortgage and as to their claim on the personal covenant being statute-barred they also insisted on their right to relief under s. 65 of the Indian Contract Act.

1942. Nov. 3, 5, 6. Roxburgh K.C. and L. M. Jopling for the appellants. The first question, whether the mortgage is void as a mortgage, depends first on whether at the date of the mortgage the Collector was in a position to exercise over the property certain powers and duties imposed by paras. 1 to 10 of the Third Schedule to the Code of Civil Procedure. If he was, then the mortgage would be void as a mortgage unless he gave written permission. At the date of the mortgage of August 12, 1919, there were no powers or duties conferred on the Collector in respect of village Mahona Poorab which he could exercise or perform. In any case, the order of the Collector of July 21, 1919, discharging or exempting the village from sale was sufficient written permission within the meaning of para. 11 (1.) of the Third Schedule to the Code