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1952 Supreme(Ori) 36
HIGH COURT OF ORISSA
Jagannadhadas, C. J. And Panigrahi, J.
SHEOBALAK MISRA - Appellant
Versus
SURAJ PRASAD - Respondent
Second Appeal 239 Of 1951
Decided On : AUGUST 18, 1952
M.S.Rao, P.C.CHATTERJI, P.MISHRA
Section 17 of the Orissa Moneylenders Act applies only to usufructuary mortgages created by a registered document and not to oral mortgages.
Headnote:
MORTGAGE - REDEMPTION - ORAL MORTGAGE - WHETHER SECTION 17 OF THE ORISSA MONEYLENDERS ACT APPLIES - INTERPRETATION OF THE TERM "USUFRUCTUARY MORTGAGE" - WHETHER IT INCLUDES ORAL MORTGAGES.
Fact of the Case:
The plaintiffs, heirs of Dhunilal Tewari, filed a suit for redemption of mortgaged properties. The defendants claimed absolute title to the lands based on an oral gift by Dhunilal in 1919. The trial court granted a preliminary decree for redemption, directing the plaintiffs to pay Rs. 1000/- to the defendants. On appeal, the lower appellate court held that the mortgage debt had been discharged and allowed unconditional redemption. The defendants appealed to the High Court.
Finding of the Court:
The High Court held that the plaintiffs' right to redeem was not barred by Section 11 of the Civil Procedure Code or by the decision in the earlier suit filed by Lalita Prasad Tiwary. The Court also held that the defendants were not entitled to any relief under the Orissa Moneylenders Act as the mortgage was created orally and not by a registered document. The Court further held that the plaintiffs were liable to pay the principal amount of Rs. 1000/- to the defendants as a condition precedent to redemption.
Issues: 1. Whether the plaintiffs' right to redeem was barred by Section 11 of the Civil Procedure Code or by the decision in the earlier suit filed by Lalita Prasad Tiwary? 2. Whether the defendants were entitled to any relief under the Orissa Moneylenders Act? 3. Whether the plaintiffs were liable to pay the principal amount of Rs. 1000/- to the defendants as a condition precedent to redemption?
Ratio Decidendi: 1. The Court held that the plaintiffs' right to redeem was not barred by Section 11 of the Civil Procedure Code as the earlier suit was not a suit for redemption and there was no decree passed extinguishing the right of the plaintiff to redeem. 2. The Court held that the defendants were not entitled to any relief under the Orissa Moneylenders Act as the mortgage was created orally and not by a registered document. The Court interpreted the term "usufructuary mortgage" in Section 17 of the Act to mean a mortgage created by a registered document and not an oral mortgage. 3. The Court held that the plaintiffs were liable to pay the principal amount of Rs. 1000/- to the defendants as a condition precedent to redemption as directed by the trial court.
Final Decision: The High Court allowed the second appeal in part, setting aside the decree of the lower appellate court and restoring that of the trial court. The plaintiffs were granted a preliminary decree for redemption, subject to the condition of depositing Rs. 1000/- within two months. The two miscellaneous appeals filed by the defendants were dismissed, upholding the decision of the District Judge to award mesne profits and interest to the defendants.
PANIGRAHI, J.
( 1 ) THESE three appeals arise out of a suit for redemption brought by the heirs and representatives of one Dhunilal Tewari of Jharsuguda in Sambalpur district, who died on the 3rd June 1934 leaving his widow Mst. Rajarani as his heir to the suit properties. She died issueless a few months later in the year 1935. In 1936, Dhunilal's brother, Lalita Prasad Tewari, filed Title Suit No. 38 of 1936, in the Court of the Subordinate Judge, Sambalpur, against the defendants in the present suit and Durga Prasad Misra (since deceased), alleging that they were in wrongful possession of the suit lands and praying for a declaration of their title to and recovery of possession of the suit lands as well as some other lands from the defendant.
( 2 ) THE allegation made by him in the plaint was that the defendants had trespassed on the suit lands subsequent to the death of Mst. Rajarani and were liable to be ejected. The plea of the defendants was that Dhunilal had borrowed a sum of Rs. 1000/- from them sometime in the year 1919 and had mortgaged the suit lands to them with possession, under an oral mortgage. They also set up an oral gift of the equity of correctness of the District Judge's order. M. A 40 of 1949 is an appeal by the defendants claiming a higher amount towards mesne profits than that awarded by the District Judge.
( 3 ) THE second appeal and the two miscellaneous appeals were heard together and are disposed of by this judgment.
( 4 ) THE plaintiffs' case in the present litigation is that they were not aware of the conditition imposed by the High Court that they should pay Rs. 1000/- towards the mortgage amount due to the defendants who were treated as mortgagees in possession, and that the decision of the High Court in Second Appeal 143 of 1940 did not in any way extinguish their right to redeem the property. They further alleged that by reason of the fact that the mortgagee-defendants had remained in possession from 1919 (the date when the mortgage-debt was incurred by Dhunilal) till 1941 (where the plaintiffs took possession) the mortgage-debt must be deemed to have been statutorily discharged by virtue of the provisions of Section 17 of the Orissa Moneylenders' Act (Orissa Act III of 1939 as amended in 1947 ). They accordingly prayed for redemption and possession of the suit properties free from mortgage. ( 5 ) THE defendants' contention was that the present claim of the plaintiffs was barred by 'res judicata' and that their right to redeem was extinguished owing to their failure to comply with the direction of the High Court calling upon them to pay Rs. 1000/- to the defendants. They also alleged that they had acquired the equity of redemption through an oral gift pr the year 1919 (Ext. J) made by dhunilal m favour of the defendants, and that by virtue of that gift they had become absolute owners of the property since they had remained in adverse possession for over twelve years.
( 6 ) THE learned Munsif who tried the suit in the first instance held that the plaintiffs' suit to redeem was not barred by either Section 11 or Section 47 of the Civil Procedure Code. He also held that the mortgage debt could not be said to have been discharged by virtue of the provisions of the Orissa Moneylenders act. He accordingly granted a preliminary decree to the plaintiffs for redemption, and directed them to pay Rs. 1000/- to the defendants, as a condition precedent to redemption. On appeal the learned Subordinate Judge agreed with the view of the Munsif that the plaintiffs' right to redeem was not barred by any of the provisions of the Civil Procedure Code, but differed from him on the question as to whether the mortgage-debt had been discharged. However, in view of the fact that the defendants had been awarded compensation in respect of their dispossession by the plaintiffs between the years 1941 and 1947 he was of opinion that the defendants should be deemed to have been in continuous possession from 1919 till 19
