P.K. Tare, J

This is the Plaintiffs' appeal against the dismissal of their claim by Shri G.C. Saksena, Second Additional District Judge, Bilaspur in Civil Suit No. 6-A of 1955 decided on 22-7-1955.

The Respondent executed a deed of mortgage by conditional sale dated 3-7-1948 (Exh. P-1) in favour of the Appellants for a consideration of Rs. 16,000, whereby eight annas village share of mauza Pondi, along with 147.64 acres of sir and 22.69 acres of khudkasht lands and a house were mortgaged with stipulations that interest was to be charged at twelve annas per cent. per month, and the whole of the amount with interest was repayable within two years, in default of which the mortgagee was to become entitled to foreclose the property. As per recitals of the deed, the debt was incurred in order to redeem the previous mortgage debt of one Jagannath Prasad amounting to Rs. 12,154 in respect of this very property, and to repay some other debts.

After the enactment of the M.P. Abolition of Proprietary Rights Act I of 1951, the village share vested in the State, while the sir and khudkasht lands became the malik-makbuza of the ex-proprietor-mortgagor under Section 38 of the said Act. He filed an application before the Claims Officer under Section 19(1) of the Act for determination of the mortgage debt due to the Appellants. By order dated 14-11-1951, the Claims Officer reduced the rate of interest from twelve annas per cent per month to eight annas per cent per month and determined the amount due as Rs. 14,115 after deducting the amount of compensation, viz., Rs. 1,885, which was directed to be paid to the Appellants towards their mortgage debt. Out of the amount of Rs. 1,885 a sum of Rs. 524-8-0, was however, adjusted towards the arrears of land revenue and the balance of Rs. 1,300-8-0 was paid to the Appellants towards their mortgage debt.

The Appellants filed the present suit on 30-1-1953 for foreclosure of the property. They alleged that the order of the Claims Officer was without jurisdiction, because the mortgage debt was an 'excluded debt' and not a 'secured debt'. They, therefore, contended that the rate of interest could not be reduced. The principal amount of Rs. 16,000 with Rs. 6,540 as interest at the rate of twelve annas per cent per month from 3-7-1948 to 18-1-1953 was accordingly claimed to be due, out of which giving credit for the compensation amount of Rs, 1,300-8-0 a decree for the balance of Rs. 21,239-8-0 was prayed for. In the alternative it was pleaded that the plaint be treated as an application under Section 28 of the M.P. Abolition of Proprietary Rights Act. In that connection, it was urged that the application should be treated as within time by excluding the period from 23-4-1951 (date of application) to 14-11-1951 (date of order) under Section 34 of the Act.

The Respondent's defence was that the order of the Claims Officer was not without jurisdiction, as the debt was not an excluded, but a secured debt, and, therefore, the only remedy was one provided by Section 28 of the Act and not by way of a suit. The plaint, if treated as an application under Section 28 of the Act, was said to be barred by time, as not having been filed within one year of the date of the order of the Claims Officer.

The learned trial Judge held that the debt was a 'secured debt' and not an 'excluded debt', and accordingly the order of the Claims Officer was held to be within jurisdiction. The plaint was treated as an application under Section 28 of the Act, but it was rejected as being barred by time. Hence the present appeal.

The learned Counsel for the Appellants urged that the debt was an excluded debt and accordingly the order of the Claims Officer was without jurisdiction, as he could not scale down an 'excluded debt'. It was contended that the debt in question is covered by Section 17(c)(vi) of the Act, which is as follows:

excluded debt refers to secured claims due in respect of--

a mortgage claim against property in the hands of a