Murlidhar vs Mathura Das And Ors. on 23 June, 1902

Allahabad High Court
Murlidhar vs Mathura Das And Ors. on 23 June, 1902
Equivalent citations: (1902) ILR 24 All 517
Author: Aikman
Bench: Aikman


Aikman, J.

1. The suit out of which this appeal arises is one of a somewhat peculiar nature. The defendants are the appellants here. They are zamindars of a village. Sultan Ali was a tenant of theirs. They ejected him by proceedings under the Rent Act. At the time of the ejectment there were standing crops on the tenant’s holding. The zamindars, wishing to acquire those crops, tendered their price to the tenant. The parties not being able to agree as to the price, the zamindars applied to the Rent Court under Clause (g) Section 95 of Act No. XII of 1881, to determine the value of the crops. The Assistant Collector fixed the value at Rs. 237. Sultan Ali assigned his rights to receive this sum to one Murlidhar, the plaintiff in this suit. Murlidhar, the assignee, brought a suit in the court of the Munsif to recover from the zamindars the amount awarded as the value of the standing crops, together with interest. The lower appellate Court has decreed the greater part of the claim, allowing a small set off on account of rent due to the defendants from the plaintiff’s assignor. The defendants come here in second appeal.

2. A preliminary objection is taken to the hearing of the appeal based upon Section 586 of the Code of Civil Procedure, namely, that the suit was one of a nature cognizable in a Court of Small Causes, and the value of the subject-matter did not exceed Rs. 500. In my opinion this preliminary objection must be overruled. Section 42(c) of Act No. XII of 1881 provides that the amount of an award made by an Assistant Collector under Clause (g), Section 95, shall be recoverable as an arrear of rent by suit under that Act. This provision clearly excludes the suit from the cognizance of a Court of Small Causes.

3. The first plea taken in the memorandum of appeal here is, that the assignee’s only remedy was an application to the Revenue Court to execute the order of an Assistant Collector appraising the value of the standing crops. In my opinion this plea cannot be sustained. As has been shown above, the mode provided by the Rent Act for recovery of the amount awarded as the price of the standing crops is not by application to execute the award, but by a suit under the Act. It is true that the suit ought to have been brought in the Revenue Court. But no objection to the jurisdiction of the Munsif having been taken, either before the Munsif or in the lower appellate court, such objection cannot now be entertained, and the appeal must be disposed of as if the suit had been instituted in the right court (vide Section 206 of Act No. XII of 1881). This disposes of the first plea.

4. The next plea is, that what the assignee acquired was an actionable claim, and that the defendants are entitled to be discharged by paying to the assignee the price and the incidental expenses of the sale of the claim with interest. This plea is based upon Section 135 of the Transfer of Property Act No. IV of 1882. In my opinion this plea likewise fails, having regard to the provisions of Clause (d) of the above mentioned section, which provides that where the judgment of a competent court has been delivered affirming the claim, the provision as to the discharge of actionable claims does not apply. Here a competent court, namely, the court of the Assistant Collector, has delivered judgment affirming the claim. These are the only to grounds in the memorandum of appeal. I therefore dismiss the appeal with costs.

5. An objection has been taken by the. plaintiff-respondent under the provisions of Section 561 of the Code of Civil Procedure, to the set off which has been allowed by the lower appellate Court. That objection is clearly without force. The landholders were entitled to set off against the price of crops, the amount of the rent payable by the plaintiff’s assignor–[vide Clause (d), Section 42 of the Rent Act.] The result is that I dismiss both the appeal and the objection with costs.

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