The judgment of the Court was as follows:—
This Rule is directed against an order made by the Munsif, Second Court, Contai, allowing an application of the mortgagor opposite party for restoration of possession of the mortgaged property under s. 26G(5) of the Bengal Tenancy Act.
Two points have been taken before us by the learned advocate, who appears on behalf of the mortgagees, petitioners. It is contended, in the first place, that s. 26G(5) of the Bengal Tenancy Act is ultra vires the Provincial Legislature and consequently cannot create any rights in the mortgagor. The second point taken is that, as there was a previous application under s. 26G(5) presented by the mortgagor before a revenue officer, which was dismissed for default, a fresh application to a civil. Court is not maintainable.
So far as the first point is concerned, it is concluded by the decision of a division Bench of this Court in Sheikh Akbar AH v. Sheikh Mafijuddin . It cannot be disputed that the mortgage in question is a purely usufructuary mortgage. Under its terms the mortgagee was to remain in possession of the mortgaged property till the mortgage money was paid, and he was to enjoy the usufruct in lieu of interest. There was indeed a covenant to indemnify the mortgagee in case of dispossession, but as has been repeatedly held, such a covenant does not affect the nature of the mortgage.
The second argument put forward by the learned advocate raises a question of some nicety. Section 26G(5) of the Bengal Tenancy Act lays down inter alia that, on expiry of the period of fifteen years from the date of the registration of the mortgage deed, the consideration for a complete usufructuary mortgage would be deemed to be extinguished and the mortgagor shall be entitled to possession of the mortgaged holding; and he may, if he is not forthwith given possession, apply to the Court or a revenue officer to be restored thereto. The proceeding, is of a purely summary character, and it seems to me that the intention of the legislature was that the mortgagor will have an option in the matter either to approach the revenue officer or a civil Court, but, once he has made his choice, and has had his claim dismissed by a revenue officer, he cannot apply to the civil Court again for the same relief. A principle akin to that of election of remedies can in my opinion be invoked in such cases against the mortgagor.
This principle, however, cannot assist the mortgagee in the present case. Here the matter was neither heard nor decided; the application was simply dismissed for default, and there was no decision against the mortgagor. The mortgagee can, in my opinion, succeed, only if the fresh application filed before the Munsif comes within the mischief of O. IX, r. 9, Code of Civil Procedure.
As there was no suit which was dismissed wholly or partially for default, O. IX, r. 9, has no direct application to the present case, but the learned advocate for the petitioner relies upon s. 141 of the Code, and contends that, as the proceeding is of a civil nature, the procedure provided in the Civil Procedure Code, should be applied to this case also. I am extremely doubtful whether the revenue officer was a Court exercising civil jurisdiction within the meaning of s. 141. The learned advocate has, in this connection, drawn our attention to certain decisions, to wit: Nilmoni Singh Deo v. Taranath Muherjee ; Madho Prakash Singh v. Murli Manohar ; Narain Kumari v. Raghu Mohapatro , which lay down that the provisions of the Civil Procedure Code are applicable to revenue Courts on such matters upon which the special Acts are silent. These were all Courts having jurisdiction under special or local laws to entertain suits or proceedings for the rent, revenue, or profits of land. The special Acts, which created these Courts, laid down the procedure that was to be followed, and for the most part it was modelled on the provisions of the Civil Procedure Code. On such matters, for which there were no provisions in the special Act, they were held to be guided by the Civil Procedure Code itself.
Section 26G(5), Bengal Tenancy Act, however, uses the expression revenue officer as contradistinguished from Court and the implication seems to be that the revenue officer is not a Court at all. Section 189 of the Bengal Tenancy Act provides:—
“The Provincial Government may, from time to time, by notification in the Official Gazette make rules, consistent with the Act,—
“(1) to regulate the procedure to be followed by revenue officers in the discharge of any duty imposed upon them by or under this Act, and may by such rules confer upon “any such officer—
“(a) any power exercised by a civil Court in the trial of suits”.
No rules have, as yet been framed by the Local Government and no authority has been conferred on revenue officers to exercise the powers of a civil Court. It was held in Kashi Nath Haldar v. Karnadhar Baidya* that the order of a revenue officer under s. 26G, Bengal Tenancy Act, was not revisable by this Court under s. 115 of the Code. I am inclined to hold, therefore, that the revenue officer was not a Court within the meaning of s. 141, C.P Code, and consequently O. IX, r. 9, has no application to the facts of the present case.
But, even assuming that the revenue officer was a Court exercising civil jurisdiction, I do not think that the provision of O. IX, r. 9 of the Code is attracted to the case before us. Under s. 26G(5), as soon as the period specified in that section expires, the consideration for the mortgage must be deemed to be extinguished, and the mortgagor gets the right to recover possession of the mortgaged property. In case the mortgagee does not deliver up possession of the property to the mortgagor, the latter can avail himself of the summary proceeding provided by the section and apply for possession, to a revenue officer or the civil Court as he thinks proper. The right to recover possession is a recurring right and continuous, so long as possession is not restored to him. If the right to recover possession is negatived by a competent tribunal, it cannot certainly be reagitated in the same Court or another Court, but, if the application is merely dismissed for default, a subsequent application cannot be barred, as the latter is not based on the same cause of action. The position is the same as in the case of partition suits, and so long as the right to partition remains, the mere dismissal of a previous suit for non-prosecution is no bar to a subsequent suit. In my opinion, therefore, the view taken by the Court below is right. The Rule is discharged without any order as to costs. Certificate is given under s. 205 of the Government of India Act.
Rule discharged.
K.C.C