Case: Zainuddin Hossain Mirza &amp; Others Vs. Satyendra Nath Bose &amp; Others

1. One Kumar Pramatha Nath Roy advanced 5 loans to thet of the appellants and the opposite parties 1 to 5 before the Claims Officer on the mortgage of Khagra Estate which was jointly owned by them. Out of the said mortgages, the appellantst executed 3 mortgages, Exs., andD dated September 30, 1927, June 30,, andJune 23, 1935, respectively. The said Kumar Pramalha Nath Roy filed Title Mortgage Suit No. 3/13 of 1937 in the Court of the Subordinate Judge, Dinajpur, to enforce the mortgages and obtained a decree therein. The mortgagee and some of the mortgagors filed appeals in the Dacca High Court against the said decree. On August 18, 1919, by a common judgment a mortgage decree was made by the High Court in favour of the mortgagee whereunder the appellants made liable to pay a sum of Rs.. Subsequently the said Estate was notified under S. 3 of the Bihar Land Reforms Act. 1950, hereinafter called the Act. Thereafter, on October 27, 1952, the mortgagee filed a petition under S. 14 (1) of the Act in the Court of the Subordinate Judge. Claims Officer, Bhagalpur Division., Purnea Camp, setting up his claim to the amount due to him from the appellants in terms of S. 16 of the Act. To that petition he made the legal representatives of the original mortgagors of all the five mortgages as parties. Opposite parties 6 to 12 are the appellants, who represent the mortgagors under Exs.C and; and opposite parties 1 to 5 represent the mortgagors under other mortgages with which we are not now concerned Respondents 1 to 5, though they filed a, remained ex parte. Respondents 6 to 12 contested the petition. They not only questioned the correctness of the amount claimed due from them but also pleaded that the claim under the mortgages was barred by limitation2. The learned Subordinate Judge held that the claimant had proved his claim ex parte against the opposite parties Nos. 1 to 5; so far as the appellants were concerned he held that a sum of Rs. 8,50,253 towards principal and Rs. 1,17,625 towards interest were due from them under Exs.C and. But he held that the claim in respect of the said 3 mortgages was barred by limitation. In that view, he dismissed the claim so far as opposite parties 6 to 12 were concerned and allowed it against opposite parties 1 to 5. Kumar Pramatha Nath Roy, i.e., the, andthe Trustees of Kumar Pramatha Nath Roy Public Charitable Trustpresumably the Trust was created by the said Roy in respect of the mortgagespreferred an appeal, Claim Appeal No. 61 of 1956, to the High Court of Judicature at Patna, which was the Board appointed under S. 17 of the Act and to which appeal lay against an order of the Claims Officer under the Act. The High Court, on a construction of the pleadings, came to the conclusion that the claim was based on the mortgage decree of the Pakistan High Court and, therefore, it was within time under Art. 117 of the Limitation Act. As regards the amount claimed, observing that the learned counsel for the parties had not challenged the correctness of the finding of the learned Claims Officer so far as the amount payable to the claimant was concerned it affirmed the amount declared by the said Officer as due from the appellants3. This appeal is filed against that order by the opposite parties 6 to 12 after obtaining the special leave of this Court. We are not concerned in this appeal with the rights of opposite parties 1 to 5 as they are not parties in this appeal.

Reasoning: We are not concerned in this appeal with the rights of opposite parties 1 to 5 as they are not parties in this appeal7. With this background let us look at the claim petition. In the claim petition the particulars of the mortgages were given the amounts payable under each of the mortgages were stated, the fact that a suit was filed in the Court of the Subordinate Judge.Dinajpur,andthat it finally ended in a decree by the Dacca High Court was mentioned. It is true that the mortgage decree made by the Pakistan High Court was not filed before the Claims Officer, but the respondents 6 to 12 in their written statement gave all the particulars of the amounts payable by them under the mortgage debts, referred to the suitandthe appeal in the Subordinate Judges Courtandthe Pakistan High Court relied upon the findings of the High Court in support of their caseandeven filed the decree of the High Court before the Claims Officer. If the decree was not filed by the opposite party, the claimant might have filed it within such time as the Claims Officer might appoint under S. 15 of the Act. In the circumstances we are satisfied that the particulars given in the claim petition satisfy the provisions of the Actandthe Claims Officer could entertain that claimandreopen the decree to ascertain the amount in terms of the provisions of the Act8. That apart, even if the claim shall be specifically based upon the decree, we agree with the High Court that on a fair reading of the pleadings it can reasonably be held that the claim was also made on the basis of the decree. The mortgagee in the claim petition filed by him expressly stated in para 9 thereof that a decree was obtained on the mortgages. In thes that fact was admitted. It is true that the High Court made a mistake when it stated that the appellants raised the question that the claim petition could not be allowed because the mortgage bonds had already been sued uponanda decree was passed in favour of the claimant. This statement was made in thet of the opposite parties 1 to 5andnot in that of opposite parties 6 to 12. But before the Subordinate Judge the opposite parties 6 to 12 argued that the claim was based on the judgmentanddecree of the High Court of Pakistanandas such the application was not maintainable. It is, therefore, clear that even the appellants understood the claim as based upon the judgmentanddecree of the said High Court. In the circumstances when all the necessary facts are alleged in the claim petitionandwhen the opposite parties themselves understood the claim as based upon the decree, the High Court was quite justified in holding that the claim was also, in substance based on the foreign decreeThis is also consistent with the contention of the appellants. In the circumstances we are satisfied that the High Court was under some misapprehension when it accepted the finding of the Claims Officer in regard to the amount payable to the claimantWe do not propose to express any opinion on this question12. This question is left open for the decision by the Claims Officer when he determines the amount due to the claimant.