TMI Blog1961 (2) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... e City Civil Courts Act, that Court had no jurisdiction to try the suit. Section 5 (4) and item No. 7 of the First Schedule of the City Civil Courts Act are quoted below:- Section 5 (4 ). the City Civil Court shall have no jurisdiction to try suits and proceedings of the description specified in the First Schedule. hem No. 7 of the First Schedule. suits or proceedings relating to or arising out of mortgages of, or charges or lien on, immovable property. The trial Court upheld the second contentions of the defendant Nos. 1 to 3 with the following observations:- on the face of it, the suit relates to the mortgage decree or arises out of it and so it is contended that it does not relate to or arise out of a mortgage. But the very basis of the mortgage decree is the mortgage. We cannot think of the decree apart from its basis, the mortgage. So I hold that the suit relates to or arises out of the mortgage of immovable property. 3. In that view the Court below directed the return of the plaint for presentation to the proper Court. The propriety of the order is being disputed in this appeal. Mr. Bhabesh Chandra Mitter, learned Advocate for the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the subject of enforcement no longer exists; it is in effect merged in the decree, and the allowance of interest on the decree is not the allowance of additional interest on the loan or debit. That this is the effect of the decree is clear on the judgment of the Board in the case last cited, where Lord Davey says (L. R. 52 I. A. 418, 433) :- (Their Lordships) think that the scheme and intention of the Transfer of Property Act (now the corresponding provisions of the Civil Procedure Code) was that a general account should be taken once for all, and an aggregate amount be stated in the decree for principal, interest, and costs due on a fixed day, and that after the expiration of that day, if the property should not be redeemed the matter should pass from the domain of contract to that of judgment, and the rights of the mortgagee should thenceforth depend, not on the contents of his bond, but on the directions in the decree Their Lordships also think that the passage quoted above from Lord Davey's judgment is decisive of the mortgagees' appeal. Up to the date fixed for redemption the matter between the parties is one of their contract, and what the court has to conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any law for the time being in force, or in any agreement, no borrower shall be liable to pay after the commencement of this Act- (a) any sum in respect of principal and interest which together with any amount already paid or included in any decree in respect of a loan exceeds twice the principal of the original loan. . . . whether such loan was advanced or such amount was paid or such decree passed or such interest accrued before or after the commencement of this Act;. . . . . . . . The effect of this section is to afford a defense to a borrower as to the amount for which he is liable, and that is all that it does. It does not affect judgments already obtained, but merely provides that the amount of a judgment already obtained is to be taken into account in calculating the final amount for which a borrower may be liable. So if, for instance, the original loan were for ₹ 1,000, and the principal and interest were payable by installments, and a decree had been obtained for ₹ 500, not more than ₹ 1,500 could be obtained under any subsequent decree. That section, therefore, cannot of itself avail a judgment-debtor against whom a decree has been regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved in the case of Shambhu Singh Sujansing Thakor v. http://www.the-laws.com/Encyclopedia/SearchResult/GetJudgementtext... Manilal Vadilal Gandhi (5) (A. I. R. 1932 Bombay, 47) : Where the clause is a consideration of the compromise and therefore intimately connected with it the words 'that relates to the suit' are sufficiently wide to embrace such a term of the compromise, as for instance, the consideration for the compromise, even though this consideration may be entirely outside the scope of the suit and relate to property which was never in question in the suit itself. 7. Again , in the case of Shyamlal v. Shayamlal (6) (A. I. R. 1933 Allahabad 649 F. B.) Sulaiman, C. J. observed:- it is clearly possible to conceive of the matters which may not strictly speaking be the subject matter of the suit itself as brought and yet they may relate to the suit. The meaning of the expression arising out of has been repeatedly considered in connection with employers' liability for payment of compensation to a workman if personal injury is caused to a workman by accident arising out of and in course of his employment (See section 3 of Workmen's Compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is much wider. It is not merely a matter arising out of the winding up or a matter arising in the course of the winding up, but also a matter relating to the winding up of a banking company. The meaning and scope of the phrases relating to and arising out of being of the comprehensiveness as indicated above we have to hold that suits which either directly or indirectly relate to or arise out of mortgages fall within the mischief of Item 7 of the First Schedule of the City Civil Courts Act, 1953. In the instant case the question for consideration will be whether the relationship between the plaintiffs and the defendants as mortgagors and mortgagees rightly ended in the mortgage-decree, and whether that decree had been validly obtained. The question, beyond doubt, ultimately relates to the mortgage. If the decree be set aside the mortgage revives; if not, the relationship between the plaintiffs and the defendants remains culminated in a mortgage decree under which the plaintiffs remain judgment-debtors 9. In the view that we take, we hold that the Court below was right in holding that the case fell within the mischief of Item 7 of the First Schedule of the City Civil ..... 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