Kashi Vs. Bajrang Prasad - Court Judgment

Excerpt:
act no. iv of 1882 (transfer of property act), sections 92 and 94 - mortgage--redemption-subsequent suit for profits received by mortgagee barred. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. richards, j.1. the facts out of which this appeal arises are shortly as follows: in the year 1902 the plaintiff sued for redemption of certain mortgaged property. a decree was obtained on the 17th of december 1902. on appeal the amount decreed for redemption was increased, but the decree was confirmed on the 3rd of february 1903. the plaintiff paid what was due according to the decree and got possession some time in the earlier part of the year 1903. the present suit was then instituted by the plaintiff to recover certain money which he alleged was due by the defendant: he says the defendant received certain rents out of the property from august 1902 to march 1903. during the time that these alleged profits were received by the defendant, he was undoubtedly in possession of the property as mortgagee, and it is impossible to deny that the present suit is a suit for a further settlement and adjustment of accounts between the plaintiff and the defendant occupying the positions of mortgagor and mortgagee. the plaintiff contends that what he is sued for was not covered by the previous accounts between the parties, and according to the judgment of the court of first instance this allegation is not without foundation. it is contended, however, on behalf of the defendant, that the present suit cannot be maintained. there is no doubt that the settlement of account between the plaintiff and the defendant, (that is, the amount for which each was liable to account) was directly and substantially in issue in the previous suit. i think it absolutely clear that in a suit for redemption there ought to be a complete and final settlement of all accounts between the mortgagor and the mortgagee, right up to the time of actual redemption or sale as the case may be. section 92 of the transfer of property act provides that in a redemption suit the court is to pass a decree ordering that an account be taken of what will be due to the defendant upon a date to be fixed by the court, when clearing the amount to be due. section 94 speaks of the final adjustment of the amount to be paid by a mortgagor in case of redemption. in the case vinayak shivrao dighe v. dattatraya, gopal (1902) i.l.r. 26 bom. 661. jenkins, c.j., makes some very cogent remarks as to what ought to be the result, between parties, of accounts in mortgage suits. i entirely agree with these remarks, and in my judgment the claim of the plaintiff in the present case could and ought to have been settled in the previous litigation and that a separate suit does not now lie. i accordingly dismiss the appeal with costs.