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Mugapa Chanbasappa Sawadatti Vs. Mahamadsaheb Imamsaheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 472 of 1908
Judge
Reported in(1910)12BOMLR137
AppellantMugapa Chanbasappa Sawadatti
RespondentMahamadsaheb Imamsaheb
Excerpt:
.....the latter sued for and obtained a decree for rents that had already accrued due. at that date the dekkhan agriculturists' relief act did not apply to the district. the decree remained unsatisfied. after the act was extended to the district, the mortgager sued to redeem the mortgage. in that suit, accounts were taken as provided for by the act, which showed that the mortgagee had overpaid himself. the mortgage was, therefore, ordered to be redeemed. the mortgagee next applied to execute the decree for rent. the lower courts holding that as the mortgagee was found in the second suit to have overpaid himself, he could not execute his decree for rent:-;that the rent-decree must be executed as it stood, having regard to the fact that the provisions of the dekkhan agriculturists' relief act,..........as mortgagee. that, amount is adjudged to have been so appropriated upon account taken under the dekkhan agriculturists' relief act. it is conceded that the act did not apply at the time the decree for rent was obtained. that decree gave a right to the appellant to recover a certain amount from the respondent. the fact that in a subsequent decree passed under the dekkhan agriculturists' relief act, it was found upon taking accounts in the way directed by the act that the appellant as mortgagee had overpaid himself from the rents and profits cannot affect the right he had acquired under the previous decree which stands in all its force. the dekkhan agriculturists' relief act nowhere provide? that where, upon an account taken under it, it is found that a mortgagee in receipt of rents and.....
Judgment:

Chandavarkar, J.

1. We must set aside the decree of the lower Court and allow the execution in this matter to proceed. The decree for rent, it is admitted, remains unexecuted. But what is relied upon for the respondent is that according to a subsequent decree for redemption, a contain amount over arid above that due to him as mortgagee was appropriated by the appellant, during the time that he was in possession of the property as mortgagee. That, amount is adjudged to have been so appropriated upon account taken under the Dekkhan Agriculturists' Relief Act. It is conceded that the Act did not apply at the time the decree for rent was obtained. That decree gave a right to the appellant to recover a certain amount from the respondent. The fact that in a subsequent decree passed under the Dekkhan Agriculturists' Relief Act, it was found upon taking accounts in the way directed by the Act that the appellant as mortgagee had overpaid himself from the rents and profits cannot affect the right he had acquired under the previous decree which stands in all its force. The Dekkhan Agriculturists' Relief Act nowhere provide? that where, upon an account taken under it, it is found that a mortgagee in receipt of rents and profits has overpaid himself, the overpaid amount becomes a debt due from him to the mortgagor and that the latter becomes entitled to recover it from the mortgagee. As was held in Ramchandra Babaji Sathe v. Janardan Appaji ILR (1880) 14 Bom. 19, a mortgagor under such circumstances is only enabled by the Act to redeem his mortgaged property on favourable terms upon an account taken in the special mode directed by the Act; but the Act does not entitle the mortgagor to claim the payment from the mortgagee of any amount received from the property over and above the amount due on the mortgage on the footing of the account so taken. If that is so, the set-off allowed by the lower Court is plainly contrary to law.

2. The rent decree must be executed as it stands, having regard to the fact that the provisions of the Act do not apply to it, and that the accounts which were taken for the purposes of the subsequent decree were taken for a special purpose-that is, for enabling the respondent to redeem on favourable terms, not for entitling him to recover anything from the appellant.

3. The decree of the lower Court is reversed and the Darkhast is remanded to the Subordinate Judge to be executed according to law.

4. Costs up to this throughout upon the respondent.

5. Costs hereafter to abide to the result.

Heaton, J.

6. I have very great sympathy with the decision which has been arrived at by both the lower Courts; and I have no doubt that our decision will be received by them with considerable surprise and will be regarded as militating against the intention of the Dekkhan Agriculturists' Relief Act. But, after all, we have to administer the law as it is, not as we think it ought to be. And although, both the lower Courts have regarded the claim which the decree-holder has made in execution of his decree with something almost amounting to amazement and as something, which if allowed, would be grossly unfair;)-et it is to be remembered that the decree for redemption has only been made by setting aside the terms of the mortgage, that is, by setting aside the contract between the parties, which the Dekkhan Agriculturists' Relief Act allows the Judge to do and by then proceeding to take an account in which only a moderate rate of interest is allowed. If the mortgage contract had been allowed to proceed, unaffected by the provisions of the Dekkhan Agriculturists' Relief Act, the mortgagee would still be entitled to the possession of the land, would be entitled to the annual profits, and would so remain for something like ten yearsjnore. And, therefore, although it is pointed out very clearly and emphatically that the mortgagee has received considerable sums in excess of what, after the account, was taken under the Act, was found due to him, yet it must be remembered, that all that he has received, and also all that he claims under this decree which he now seeks to execute would be due to him but for the operation of the Dekkhan Agriculturists' Relief Act, and even after he has executed the decree, the mortgagee will have obtained far less than he would have received if the contract between the parties had been allowed to proceed. This may be an example of the great need that the Court should be allowed to break contracts of this kind and re-settle the relations between the parties on a fair basis. But it seems to me that there is nothing that can be described as unjust or unfair in allowing a creditor to receive that which the law entitles him to receive and permits him to receive. Until the Dekkhan Agriculturists' Relief Act was introduced into the Dharvvar District, the mortgagee in this case was entitled to the rent fixed by the rent-note, and he was entitled to that for the years for which he obtained the decree for it. That decree was perfectly right, as the law then stood. It has never been set aside, and it seems to me that we are bound to let that decree be executed whatever our opinions may be as to whether the decree-holder is fairly entitled to the rent or not. We are bound to let that decree be executed unless it can be shown that in law, or for some reason or another recognized by the law, it ought not to be executed. It is one of the first principles of our law that when a decree is made, that decree, set aside by a Court of competent jurisdiction, is a good decree and the holder of it can enforce execution of it until it becomes time-barred. Therefore this decree must be executed unless it has been satisfied, and nobody contends that it has, or unless there is some set-off which can be placed against it. Nobody can make out anything in the nature of a legal set-off; or that there is any money due by the mortgagee to the mortgagor which the latter is entitled to say must be regard- ed as payment of the decree in whole or in part; because, although in the redemption suit it was found that under the method of taking accounts peculiar to the Dekkhan Agriculturists' Relief Act the mortgagee's debt was more than paid off, yet the mortgagor has not obtained a decree on the excess payments and therefore they cannot be pointed to as monies due from the Mortgagee to the mortgagor. Therefore, as the decree is still in force and has not been paid and there is nothing which can be pointed to as a set-off in law against what is due under that decree, it seems to me that it must be allowed to be enforced.

7. This result is not more peculiar than that which was arrived at recently in England in the case of Poulton v. Adjustable Cover and Boiler Black Company W. In that case it was held that a decree obtained must be enforced though after events showed that no such decree would have been made had the true circumstances been known. Here we have a decree perfectly lawful and good and not based on any misconception of fact, but it is proposed to forbid its execution on account of a change in the law made after the decree was obtained, which change does not either directly or by implication affect the decree. That change in the law cannot be permitted to annul the decree.


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