Umrao Kunwar vs Misrilal (deceased) and others

Nigam, J.C.

This is an application for leave to appeal to the Hon''ble Supreme Court, against the judgment and decree of this Court in Civil First Appeal No. 32 of 1950. This application has been filed by the defendant appellant. In the application, I have heard the learned counsel for parties.

The first objection urged by the learned counsel for the parties is that the case does not come under Cl. (b) of Art. 133 (1) of the Constitution of India and that the judgment and decree do not involve directly or indirectly any claim or question respecting property of a valuation over twenty thousand rupees. This question was considered by me in - ''Civil Misc. Appln. No. 169 of 1950 (Ajmer) (A)'', and then I did not follow - Mangina Venkataswami and Another Vs. Nuli Manikyam and Others, and - Sati Bala Dasi Vs. Chota Nagpur Banking Association Ltd. and Another, on which the learned counsel for the opposite parties relies, so far as clause (b) of this Article is concerned. In the present case, certain improvements are stated to have been made on the mortgaged property, and I am of opinion that indirectly a claim to property worth more than twenty thousand rupees is involved in this appeal. I am, therefore, of opinion that the petition satisfies the requirements of Art. 133 (1)(b).

The second objection urged by the learned counsel for the opposite parties is that the appeal does not involve any substantial question of law. The question for determination in the appeal is, whether the particular conditions of the mortgage deed amount to a clog on the equity of redemption or not. The learned counsel for the petitioner urges that there is no definite pronouncement either of the Privy Council or of the Supreme Court laying down the conditions, which would amount to a clog on the equity of redemption. Any such decision can, in my opinion, only be a decision on the particular facts of the appeal in which it is given and cannot be a decision as to the law. What appears to be involved in this appeal, is a question of fact, and not a substantial question of law.

It is next urged by the learned counsel for the petitioner that this Court held that even in the absence of an allegation of fraud, misrepresentation, undue influence, etc., the mortgagor could get the equitable relief if the conditions of the mortgage amounted to a clog on the equity of redemption. The learned counsel has not pointed out to me any ruling or authority in support of his contention that this relief could not be granted in the absence of such allegations. I am, therefore, unable to hold that there is a divergence of views between the High Courts on this point and that therefore the case is a fit one for appeal to the Hon''ble Supreme Court.

No other point has been pressed before me. I, therefore, hold that the case is not a fit one for appeal to the Hon''ble Supreme Court and dismiss the application with costs.