JUDGMENT
S.N. Jha and Aftab Alam, JJ.
1. This appeal by the defendants against the judgment of affirmance arises out of a suit for recovery of mortgage money with interest.
2. According to the plaintiff, he advanced a loan of Rs. 1500/-to the defendants on 22-1-71 in consideration of which they executed a deed of usufructuary mortgage with respect to 7 kathas 4 dhurs of agricultural land. The plaintiff was forcibly dispossessed on 29-6-74 during the currency of the mortgage. The plaintiff made demand for payment of mortgage money and on refusal instituted the suit. The defendants denied the story of dispossession. According to them, the plaintiff continued to be in possession of the mortgaged property until he was evicted on 17-4-78 pursuant to the order of the Anchal Adhikari dated 13-3-78 on application filed by the defendants on 23-1-78 under Section 12 of the Bihar Money Lenders Act, 1974 (in short, ‘the Act’).
3. Both the courts have concurrently held that the plaintiff was dispossessed from the land on 29-6-74. They have also held that the order of Anchal Adhikari was without jurisdiction.
4. Mr. Vindhya Keshri Kumar, learned Counsel for the defendantsappellants submitted that the suit was not maintainable as the Civil Court has no jurisdiction to decide the question relating to possession or dispossession of property which was subject-matter of usufructuary mortgage, in respect of which the Collector, within the meaning of the Act alone had the jurisdiction. Counsel emphasised the use of non-obstante clause in Section 12 of the Act. Section 12 reads as follows :
Notwithstanding anything to the contray contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of 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 in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules :
Provided that if the mortgage bond has been executed before the commencement of this Act nothing in this section shall entitle the mortgagor to claim any accounts or profits from the mortgagee by the reason of the benefit of redemption of the mortgage under this provision.
(Emphasis added)
5. As would appear from the preamble as well as its aims and objects, the Act is a measure of beneficial legislation intended to liberate agricultural debtors from the shackles of the ever-continuing indebtedness. If is in that background that the provisions of Section 12 have been given an overriding effect superseding anything to the contrary contained in any law or agreement. In other words, Section 12 provides for statutory redemption of the mortgage notwithstanding the period mentioned in the deed or the provisions of the Transfer of Property Act or any other law. No sooner the period of seven years is over an usufructuary mortgage relating to agricultural lands stands redeemed and the debt wholly satisfied. The section provides a mechanism to give effect to the redemption in the manner prescribed under the Rules.
6. It would appear from the Scheme of the Act read with Rule 10 of the Rules framed thereunder that after expiry of seven years if an obdurate mortgagee fails or refuses to give up possession of the mortgaged property despite notice to that effect, the mortgagor may file application for restoration of possession. Thereupon, the Collector shall issue notice and upon consideration of the show cause, pass an order to eject the mortgagee and to put the mortgagor in possession of the property.
7. There is nothing in Section 12 which shuts or excludes the jurisdiction of the Civil Court. Section 9 of the Civil Procedure Code provides that the Courts shall have jurisdiction, subject to the provisions contained in the Code, to try all suits of a civil nature except the suits of which their cognizance is either expressly or impliedly barred. We called upon learned Counsel to point out any provision which either by express words or by necessary implication bars the jurisdiction of the Civil Court. We pointed out that there may be cases in which an unscrupulous mortgagor during the currency of the mortgage, may forcibly dispossess the mortgagee, as in the instant case and yet refuse to pay the mortgage money. If the submission is accepted to be correct, the mortgagee in such an event would be rendered remediless. learned Counsel could not point out any such provision under which the mortgagee can seek his remedy. He merely contended that the converse may also be true where a person having remained in possession of the mortgaged property may later take the plea of forcible dispossession and claim recovery of the mortgage money. However, it is obvious that any such plea has to substantiated by adducing cogent evidence and at that stage the mortgagor will have ample opportunity to contest the plea.
8. The law on the point of exclusion of remedy available under the ordinary law or bar of jurisdiction of the court is well settled. Where a statute creates a new right and liability and also prescribes special remedy for the enforcement of such rights, then that remedy alone is to be availed of to the exclusion of the remedy which is available under the general law. If any authority is required to be cited, the observations made in Firm Seth Radha Krishna v. The Administrator, Municipal Committee AIR 1965 S. C. 1547 set forth below, should suffice :
A Statute, therefore, expressly or by necessary implication, can bar the jurisdiction of the Civil Courts in respect of a particular matter. The mere conferment of a special jurisdiction on a Tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts even if there was no such special exclusion, if it cteates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted.
The Act creates a new right in favour of the mortgagor and provides for a remedy as we 1 as forum for him where he can get his right enforced. The Act does not provide for any remedy to an aggrieved mortgagee. In our opinion, therefore, the jurisdiction of the Civil Court is not barred by reason of the provisions of the Act, The instant suit was, accordingly, maintainable there.
9. learned Counsel contended that in any view the courts below could not have held that the order of the Anchal Adhikari was without jurisdiction. We may only observe that this finding was only consequence of the finding on the main issue as to whether the plaintiff had been dispossessed on 29-6-1974 i. e. during the currency of the mortgage or not. In view of the finding that the plaintiff had been dispossessed on that date, the order of Anchal Adhikari dated 13-3-78 directing his ejectment from the land or its alleged delivery of possession on 17-4-78 had only to be ignored.
10. This appeal is concluded by findings of fact and the judgment and decree of the courts below do not suffer from any error of law. The appeal, accordingly, is dismisssed with costs.