Case: Sita Saran Singh Vs. Kedar Prasad Singh and Others

3. The suit from which this appeal arises is based on two simple mortgage deeds executed by one Hardeo Singh, the father of defendant No. 1 (the appellant in this appeal) on his own behalf and as guardian of his minor sons. The first of these two mortgages was executed on September 14, 1943. That was for a sum of Rs. 11,The second mortgage was for a sum of Rs. 4, 000/executed on May 3, 1946. Both of them are simple mortgages. The rate of interest prescribed under those mortgages is 12 per cent. per annum. On the foot of those mortgages, the respondents who are mortgagees brought the suit from which this appeal arises claiming therein a sum of Rs. 30, 600/with future interest. The Trial Court dismissed the suit as being not maintainable in view of the provisions of the Bihar Land Reforms Act, 1950. But in appeal the High Court of Patna reversed the decree of the Trial Court and granted a preliminary decree for the amount due under those deeds. It granted four months time to the defendants to pay up the decretal amount with interest to the plaintiffs. It further ordered that in default, the preliminary decree shall be made final and the properties mentioned in Schedule 3 of the plaint shall be sold to satisfy the decretal dues.4. Under the two mortgages mentioned above, the mortgagor had mortgaged his preparatory right in the properties mentioned in the Schedule annexed to those mortgages. We were told at the bar that the second mortgage was in respect of the very properties that had been mortgaged under the first mortgage. According to the defendants all the properties mortgaged under the two deeds mentioned earlier had vested in the Government in view of the provisions of the Act and therefore the mortgagor could have proceeded only under Section 14 of that Act. The defendants contended that the present suit was barred by the provisions of the Act. It was claimed on behalf of the plaintiffs that the properties mentioned in Schedule 3 of the plaint are Zirat, Bakasht and Giarmazrua lands. The contention of the plaintiffs was that the properties that fall within the scope of Section 6 of the Act have not vested in the Government under Section 4.In support of that proposition, the plaintiffs relied on the Full Bench decision of the Patna High Court in Sidheshwar Prasad Singh v. Ram Saroop Singh. (AIR 1963 Pat 412   : 1963 BLJR 802.) The High Court accepted that contention and decreed the suit as mentioned earlier.

Reasoning: We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under(1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) orthe payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra).