they also alleged that the appellant had number given credit similarly to anumberher sum of rs.
nevertheless it was number open to the mortgagee to proceed simultaneously to enforce his right under the ordinary law as also under the act.
the appellant requested the claims officer to allow his claim as per the provisions of the act.
c. chatterjee and d. goburdhun for the appellant.
for recovery of the mortgage amounts and also obtained a decree.
22000/ .
20000/ had number been established to have been paid to the appellant by maheswari singh the purchaser of one item of mortgaged properties.
nevertheless the learned judge was number inclined to allow the request of the appellant to withdraw his claim application.
22340/3/2 has been accepted by the claims officer.
inasmuch as the claim appeal involved a claim exceeding rs.
the judgment under attack shows that he was at one stage inclined to remand the proceeding with a direction to the claims officer to record a more definite finding.
20000/ must have been paid by maheshwari singh to the mortgagee appellant and the mortgagors should be given credit for that amount.
in the order dismissing the application after referring to the circumstances under which the claim application was made by the appellant and the findings recorded by the claims officer the learned judge referred to the fact that the appellants request was for withdrawal of the claim without any reservation whatsoever.
2500/ out of the principal amount was made in respect of the value of the house in gaya fixed by the officer.
regarding the claim a.i.r.
the last companytention raised by them was that the appellant had realised as income from the properties a sum of rs.
appeal by special leave from the judgment and order dated may 13 1960 of the patna high companyrt before the board constituted under s. 18 1 of the bihar land reforms act 1950 in claim appeal number 22 of 1956.
84000/ companyprising three different sets of properties a five items of milkiat properties b a three storey house in the town of gaya and c certain bakasht lands.
900000/ and therefore the entire mortgage liability stood discharged.
on numberember 18 1925 the appellant had obtained a usufruc tuary mortgage for a total sum of rs.
84000/and that numberamounts had been paid by the mortgagors towards their liability.
he had filed a suit.
by the claims officer.
the deed of mortgage is marked as exhibit i. by this mortgage the earlier decree was repaid.
1958 pat.
the claims officer had also held that the principal amount advanced by the appellant should be fixed in the sum of rs.
45324/ .
40514/10/ the respondents challenged this decision of the claims officer in claim appeal number 22 of 1956 before the board constituted under s. 18 1 of the act.
when the claim appeal was being heard by the learned judge the appellant again appears to have reiterated his request to withdraw the claim application as originally asked for in his application dated numberember 9 1959.
10000/ the board as per s. 18 1 a of the act companysisted of a judge of the patna high companyrt namely misra j. in the appeal before the board the respondents had attacked the various findings recorded against them.
but the learned judge did number actually record in this order what exactly would be the prejudice caused to the respondents by allowing the appellant to withdraw his claim application.
the appellant filed an application dated numberember 9 1959 before the board for permission to withdraw the claim case preferred by him before the claims officer and also requesting that further proceedings in the claim appeal filed by the respondents be dropped.
2500/ might be made out of the principal amount.
on an admission made by the appellant the claims officer hold that a sum of rs.
40514/10/ out of the companypensation money in respect of his mortgage claim.
a further reduction of rs.
23250/ as income from the properties which were in his possession.
900000/ on the other hand the abstract of accounts submitted by the appellant showing the net income received as rs.
2309/8/ received by the mortgagee from the purchaser of an item of the mortgaged properties.
it may be mentioned at this stage that according to tile appellant he had realised only a sum of rs.
in the result the claims officer allowed the claim of the appellant in the sum of rs.
on these findings the claims officer came to the companyclusion that numberportion of the principal amount had been satisfied out of the unsufruct of the property given on mortgage except the sum of rs.
in this companynection the learned judge adverted to the plea of the appellant that he had realised by way of rents and profits only a sum of rs.
civil appellate jurisdiction civil appeal number 759 of 1964.
15000/ on april 24 1917 for rs.
the judgment of the companyrt was delivered by vaidialingam j. in this appeal by special leave the judg ment and order of a single judge of the patna high companyrt constituted as the board under s. 18 1 of the bihar land reforms act 1950 bihar act xxx of 1950 hereinafter referred to as the act are under attack.
the claims officer was number prepared to accept the plea of the respondents regarding the payment of rs.
the claims officer by his order dated april 18 1956 ulti mately held that the appellant was entitled to recover a sum of rs.
the claims officer accepted the plea of the respondents that in respect of the house in gaya a ratable reduction of rs.
made by the respondents that the appellant when he was in possession of the mortgaged properties had realised nearly nine lakhs of rupees by way of income from the properties the learned judge was of the view that there had only been a general finding recorded by the claims officer in favour of the appellant.
2309/8/ had been received by the appellant from a purchaser of one item of the mortgaged properties and that the respondents were entitled to be given credit for that amount.
the claims officer was number prepared to accept the plea of the respondents that the appellant had received by way of income from the mortgaged properties in his possession a sum of rs.
the learned judge again was number inclined to accept that request.
20000/by maheshwari singh.
after having expressed his view in the manner indicated above on the request of the appellant for withdrawing the claim application the learned judge then companysidered the appeal filed by the respondents on merits.
but he ultimately came to the companyclusion that it was number necessary to remand the proceeding inasmuch as the claim of the respondent companyld be adjudicated upon on the basis of the evidence adduced by the parties and other circumstances.
he was number prepared to accept the finding of the claims officer that the sum of rs.
the learned judge by his order dated december 7 1959 dismissed the said application.
the respondents filed objections to the claim made by the appellant.
9supci/66 5 the appellant filed an application dated april 24 1955 under s. 14 of the act before the claims officer.
that application was opposed by the respondents.
the learned judge after giving credit to the additional sum of rs.
33000/ and on numberember 12 1917 for rs.
42500/ .
in this companynection he referred to the evidence adduced by the parties and ulti mately held that the sum of rs.
by virtue of a numberification issued under s. 3 of the act the milkkiat properties vested in the state of bihar on january 25 1955 and in respect of the bakasht lands the respondents became statutory tenants under s. 6.
before we refer to the findings recorded by the board it is necessary to advert to an application filed by the appellant before the board.
in that application he had stated after giving particulars of the items mortgaged under exhibit 1 that the principal amount advanced was rs.
the learned judge also referred to the principle laid down in the said decision that under those circumstances the mortgagee would have to elect and that once he had elected his remedy by having recourse to the procedure under the act he was bound down to it and he companyld number resile from that position the learned judge was also of the view that in this case the ap pellant having filed his claim under s. 14 of the act and a decision having been given by the claims officer it was the duty of the board sitting in appeal only to decide the correctness or other wise of the order passed by the claims officer in companysequence he was of the view that when once the prayer of the appellant for withdrawal had been rejected he had to proceed to decide the case on merits as per the provisions of the act.
in short their plea was that the appellant had number given credit for a sum of rs.
the appellant had taken three mortgages from the respondents on july 20 1915 for rs.
p. jha for the respondents.
in this companynection he referred to a decision of the patna high court in sukhdeo das v. kashi prasad 1 to the effect that though it was open to a mortgagee either to proceed against the companypensation money as part of the mortgage security or enforce his right against the mortgagor personally or against the mortgage security that had number vested in the state.
20000/ which amount according to them had been paid by one maheshwari singh a purchaser of an item of mortgaged properties.
3250/ paid by one baldeo singh a purchaser of anumberher item of the mortgaged properties.
