Mst. Ramrati Kushwaha vs Manikamna Prasad Gautam
2021 Latest Caselaw 8681 MP

    HIGH COURT OF JUDICATURE FOR MADHYA
            PRADESH : JABALPUR


Case No.                                 S.A. No.2038/2018
Parties Name                        Mst. Ramrati Kushwaha
                                             Vs.
                                   Manikamna Prasad Gautam

Date of order                                13.12.2021
Bench Constituted                      Justice Vivek Agarwal
Order passed by                        Justice Vivek Agarwal
Whether approved for reporting                  No
Name of counsel for parties      Shri Arun Kumar Singh, learned
                                 counsel for the appellant.


Law laid down                                   --

Significant paragraph numbers                   --



                              ORDER

(13.12.2021)

This second appeal under Section 100 of Civil

Procedure Code, 1908 has been filed by the appellants

being aggrieved of judgment dated 03.05.2018 passed by

learned Second Additional District Judge, Mauganj,

District Rewa in Regular Civil Appeal No.04-B/2016.

2. Appellants contention is that a suit was filed by the

plaintiff Manikamna Prasad Gautam alleging that on the

basis of Indu-Talab-Rukka he had advanced a sum of

Rs.52,000/- in favour of defendants and it was agreed

that defendants shall execute a sale-deed in relation to

land contained in survey No.16/2 measuring 0.101 R.A.

i.e. 0.25 acres along with two Mango trees and one

Mahua tree and it was further held that if sale-deed is

not registered then this amount shall carry interest @ of

Rs.3 per Hundred per month till the amount is returned.

Accordingly, a suit was filed, claiming refund of the

principal amount along with interest which was

dismissed by the trial Court vide judgment dated

19.09.2016 passed in Civil Suit No.8-B/13 holding that

the Indu-Talab-Rukka is not registered and therefore,

that cannot be admitted in evidence. Thereafter,

plaintiff had filed Regular First Appeal on the ground

that there was no need to get said document registered

in terms of the provisions contained in Section 17 of

the Registration Act, 1908, this appeal is allowed,

hence this second appeal.

3. After hearing learned counsel for the appellants

and going through the provision contained in Section

17 of the Registration Act, 1908 so also the writing on

Indu-Talab-Rukka, it is evident that there is no mention

of any immovable property in said Indu-Talab-Rukka

and that Indu-Talab-Rukka was capable of being

executed independently of any other document

purporting to be a mortgage-deed as is the case of the

plaintiff. Accordingly, learned First Appellate Court has

not committed any illegality in decreeing the suit for a

sum of Rs.52,000/- with 6% annual interest w.e.f. the

date of Indu-Talab-Rukka till the actual date of

payment.

4. In fact, law in regard to pro-note i.e. Indu-Talab-

Rukka is unambiguous and it has been held by the

Calcutta High Court in case of Pradeep Chand Lall

and Anr. Vs. Grindlays Bank Ltd. And Anr. (AIR

1987 Cal 157) that execution of pro-note and a

mortgage-deed by borrower when exists together then

the cause of action to execute the pro-note is

independent of the mortgage and a creditor is not

bound to exhaust his remedies against the principal

debtor. It is held that a Promissory Note is a distinct

cause of action independent of and apart from the

mortgage. Similarly the cause of action based on the

agreements for guarantee is independent of and apart

from the mortgage. Thus the personal liability to repay

the loan in the instant case arises independently of any

existing mortgage and the suit is not by the mortgagee

for mortgage money. Accordingly, section 68 of

Transfer of Property Act cannot have any application.

5. In light of aforesaid legal authority that pro-note

can be given effect to independently, no substantial

question of law emerges for consideration in light of

the law settled by the Calcutta High Court in the case

of Pradeep Chand Lall and Anr (supra).

6. Therefore, appeal fails and is dismissed.

(VIVEK AGARWAL) JUDGE

Tabish

Digitally signed by MOHD TABISH KHAN Date: 2021.12.16 17:39:31 +05'30'