Nihal Singh vs Hazara Singh

Kapur J.

1.This is a plaintiff''s appeal against a judgment of a learned Single Judge of this Court dated 20-4-1949 allowing an appeal against an appellate order of the Senior Subordinate Judge by which he had remanded the case for trial holding that the order of discharge of debt was Illegal.

Nihal Singh executed a deed of mortgage for Rs. 220/- with interest at Rs. 1/9/- per cent. per mensem on 9-7-1938. Some time later Kishana Bam made an application to the Debt Conciliation Board u/s 9 of the Relief of Indebtedness Act against Hazara Singh. On 26-11-1943 Hazara Singh filed a written-statement in which he admitted that Rs. 220/- were due to Nihal Singh on the basis of a simple mortgage and he prayed that conciliation may be brought about between him and his creditors.

On 21-3-1944 Nihal Singh creditor filed a written statement claiming Rs. 417/5/- being due to him on the basis of the mortgage and he also stated as to how this sum was arrivert at-giving a credit of Rs. 33A which had been received by him. Along with this written statement he filed a copy of the registered mortgage deed in his favour. On the same day an order was passed in which it was first ordered that the creditors should put in their documents by 26-7-1944. This order related to those who had not put in their documents. About the other creditors it was stated that they had put in their written statements that day and they should be put on the file. On three occasions, so it has been held by the learned single Judge orders were passed by the Debt Conciliation Board calling upon the creditors to produce the original documents, but they were not produced and therefore on 17-4-1945 the Board discharged the debt of the plaintiff Nihal Singh.

On 19-10-1946 Nihal Singh brought a suit for the recovery of Bs. 328/- being the amount due on his mortgage with interest on the principal which he calculated at reduced rate. The trial Court dismissed the suit on the ground that the debt had been discharged which order was set aside by the appellate Court who remanded the case for trial. The learned single Judge has restored the decree of the trial Court and the plaintiff has appealed.

"The sole question to be decided is whether in the circumstances of this case the Board could discharge the debt which had been mentioned in the written-statement of the debtor who admitted that he owed a debt on a simple mortgage for Rs., 220/-. When a debtor admits a debt due from, him, it is not open to the Debt Conciliation Board to discharge the debt merely on the ground that the original document on which the debt is due has not been produced. It was so held by a learned Judge of the Lahore High Court in - ''Hari Narain v. Bhagat Bam'' AIR 1944 Lah 126 (A), which was approved of in a Division Bench judgment of that Court, - ''Mohammad Din v. Phula Singh'' AIR 1944 Lah 127 (B), where it was held that when a decretal amount due to a creditor has been admitted by the debtor in his petition under S. 9, it is not necessary for the creditor to file a copy of the decree in support of his claim.

Mr. Mela Ram has strongly relied on these two judgments, and he submits that when the debtor Hazara Singh had admitted that there was a debt due to Nihal Singh on a mortgage for Rs. 220/- it was not necessary for him to produce the original document, particularly when he had produced a copy, and in the first order of the Board it was the other persons who had beer called upon to produce the original documents The contention of Mr. Mela Ram appears to be sound, and I would therefore hold that in this particular case it was not necessary for the creditor to produce the original mortgage deed.

I would therefore allow this appeal, set aside the judgment of the learned single Judge and restore the order passed by the learned senior Subordinate Judge and remand the case for trial in accordance with law. Costs will abide the event.

Parties have been directed to appear in the trial Court on 8-10-1952.

(8) SONI J. I agree.