Bhagwan Singh vs Hari Ram and Others

Allsop, J.—This second appeal arises out of a suit u/s 33, Agriculturists'' Relief Act, which was dismissed by the lower appellate Court upon the ground that the plaintiff was not entitled to invoke the aid of that section. The plaintiff set up two mortgages dated 3rd June 1921 and 6th July 1922. The property mortgaged was land held by the mortgagor as an occupancy tenant. The learned Judge of the lower appellate Court held that there could be no suit u/s 33 of the Act because there was no valid mortgage. It seems to me in the first place that Section 33 does not refer to mortgages as such but to loans and advances. Nobody has denied that money was advanced to the predecessor-in-interest of the plaintiff. If the plaintiff does not choose to repudiate the transaction there seems to me no reason why the Courts should do so. Learned Counsel for the appellant has also referred me to the case in Ghassu and Another Vs. Babu Ram and Another, in which a Full Bench of this Court held that an application u/s 12, Agriculturists'' Belief Act, could be made for the redemption of a mortgage of an occupancy tenancy. The principles upon which that decision was founded apply equally to the present case. I, therefore, hold that the suit was not barred. I set aside the decree of the learned Judge of the Court below and remand the appeal to him for decision upon the merits. The court-fees, may be refunded under the provisions of Order 41, Rule 23, Civil P.C. The other costs will follow the result and be included in the costs of the Court below.