ORDER
Hari Lal Agrawal, J.
1. The petitioners, who were the defendants first party in a suit instituted by the plaintiffs opposite party, have filed the present revision application, although the suit which was brought for the redemption of the two mortgage bonds has been “wholly dismissed” against them. The contention raised on their behalf is that the trial court should not have recorded any finding against them when it was going to dismiss the suit on the ground of its maintainability.
2. Some relevant facts may be stated. The plaintiffs instituted Title Suit No. 222 of 1968 for redemption of two mortgage bonds executed on 30-8-1930.
A long written statement was filed by the petitioners and one of the pleas set up by them was that the right of redemption of the plaintiffs was extinguished on account of the sale of their holding in execution in a rent decree. An issue, namely, issue No. 4 was also framed by the trial Court to determine this point. A large number of witnesses were examined by the parties and on a consideration of their evidence, the trial Court recorded a finding that the mortgage bonds were still subsisting and that the contesting defendants were in possession over the mortgaged lands as mortgagees. It, however, refused to grant a decree for redemption to the plaintiffs in view of the provisions contained in Section 12 of the Bihar Money Lenders Act, 1974.
3. It is relevant to quote here Section 12 of the Bihar Money Lenders Act, 1974 (briefly the 'Act') which reads as follows: "Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execution of the mortgage bond ... ... ... and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules."
Rules have been also framed under the Act, and Rules 9 and 10 prescribed the procedure for resumption of possession of the mortgaged property by a mortgagor under Section 12 of the Act. Rule 10 provides that on the failure of the mortgagee to deliver possession of the mortgaged property to the mortgagor, on the expiry of the period of notice sent by the mortgagor in the prescribed form, the mortgagor has to file an application in Form M.L.-5 to the Collector within whose jurisdiction the mortgaged property or any part thereof is situated, to eject the mortgagee from, the mortgaged property, and the Collector has thereupon to make an order in writing to eject the mortgagee from the mortgaged property, after issuing notice to him to show cause, and put the mortgagor in possession, if in his opinion, the cause shown by the mortgagee is not satisfactory. A machinery in the nature of a conciliation proceeding has been prescribed to settle the dispute, if any, between the mortgagor and the mortgagee through a Board.
3-A. The trial Court, however, held that although the mortgages were subsisting, no relief could be granted to the plaintiffs as the suit was hit by the provisions of Section 12 of the Act. It, accordingly, dismissed the suit.
4. Mr. Pradyumna Narain Singh appearing for the petitioners, as already indicated earlier, contended that the trial court should not have recorded any finding against the petitioners at all when it was bound to dismiss the suit on the ground of its maintainability and thereby it committed an apparent error of jurisdiction. He further contended that the finding recorded with respect to the subsistence of the mortgage bonds would operate as res judicata against the petitioners who would be greatly prejudiced to dispute the said fact in any proceeding which may be taken before the Collector under the Money Lenders Act. Learned Advocate appearing for the plaintiffs opposite party, however, contended that the remedy of the petitioners, if they felt aggrieved by the impugned judgment, was to file an appeal as the suit was wholly disposed of by a regular judgment and an appeal lay against the same and, therefore, the application under Section 115 of the Civil P. C. was incompetent.
5. The arguments advanced on behalf of learned counsel appearing on behalf of either party are misconceived. It has been seen that the plaintiffs’ suit has been dismissed on the ground of “its maintainability”. The order of dismissal of the suit, however, is not based upon the finding recorded against the defendants regarding the subsistence of the mortgage bonds. Therefore, the order of dismissal of the suit is not based upon the said finding. The decree in this case, therefore, is wholly in favour of the petitioners and they could not have filed an appeal against the same as no appeal lies merely against some findings on an issue in the suit. Although Section 96 of the Civil P. C. does not prescribe that only that person against whom a decree has been passed or against whom a relief has been granted can come in appeal, but it has been settled by a large number of judicial decisions that for determination as to who is an aggrieved person, one has to look to all the circumstances of a case and the substance of the decree passed, and where a decree is absolutely in favour of a party but some issues are found against him, he has no right of appeal against the decree or the findings; firstly because he is not adversely affected thereby and, secondly, because such findings are not embodied and form part of the decree. Simply because there is an adverse finding against the defendant on one point, a plea of res judicata cannot be founded on that decision, because the defendant having succeeded on other pleas, he has no occasion to go further as to the finding recorded against him. Reference in this connection may be made to a decision of this Court in Sagarmal Agarwalla v. Smt. Annapurna Neogi, (1963 BLJR 334) : (AIR 1964 Pat 298) and, of the Supreme Court in Smt. Ganga Bai v. Vijay Kumar, (AIR 1974 SC 1126).
6. The petitioners, therefore, had no right of appeal against the impugned judgment For the same reason, it must also be held that they being not an aggrieved party, could not file the present revisional application as the suit was dismissed in their favour.
7. The present revision application being entirely misconceived, must fail and is, accordingly, dismissed. In the circumstances of the case, however. I shall direct the parties to bear their own costs.
