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Rama Sankayya Hegde Vs. Mahadeva Anant Bhatta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 749 of 1939
Judge
Reported inAIR1942Bom278; (1942)44BOMLR597
AppellantRama Sankayya Hegde
RespondentMahadeva Anant Bhatta
DispositionAppeal dismissed
Excerpt:
bombay land revenue code (bom. v of 1879), sections 86, 87-mortgagor executing rent note in favour of mortgagee and making tatter superior holder -application by mortgagee under section 86 to recover arrears of rent-sale of mortgagor's equity of redemption by order of collector-whether sale permissible -civil procedure code (act v of 1908), order xxxiv, rule 14-rule whether applicable to such sale-construction.;where a mortgagee lets the mortgagor into possession of the mortgaged property under a rent note and obtains from the collector, under section 86 of the bombay land revenue code, 1879, an order for assistance for recovery of arrears of rent, in execution of which the property is sold, the sale becomes binding on the mortgagor, notwithstanding the provisions of order xxxiv, rule 14,..........in 1933 and the defendant made an application for assistance under section 86 of the bombay land revenue code to the collector. the collector made an order in his favour for recovery of the rent and under that order the appellants' equity of redemption was sold under the provisions of the bombay land revenue code and was purchased by the defendant mortgagee on july 20, 1934, the sale being confirmed on august 27, 1934. on october 11, 1934, the appellants filed the suit out of which this-appeal arises for a declaration that the sale of the equity of redemption in the revenue proceedings was invalid and was not binding upon them as mortgagors. originally there was also a prayer for taking accounts of the mortgage under the dekkhan agriculturists relief act. the trial judge dismissed.....
Judgment:

N.J. Wadia, J.

1. Appellant No. 1 and his father had mortgaged certain lands to the predecessor-in-title of the respondent in 1906. On the same day on which the mortgage deed was passed the father passed a registered rent note to the mortgagee and took possession of the lands agreeing to give a certain quantity of rice by way of rent and to pay the assessment. The mortgage was in favour of one Dattatraya Dixit. In 1912 the mortgage rights were transferred to one Ganpati Bhatta who in his turn transferred them to the present defendant in 1919. Rent according to the terms of the rent note was paid up till 1932-33. It fell into arrears in 1933 and the defendant made an application for assistance under Section 86 of the Bombay Land Revenue Code to the Collector. The Collector made an order in his favour for recovery of the rent and under that order the appellants' equity of redemption was sold under the provisions of the Bombay Land Revenue Code and was purchased by the defendant mortgagee on July 20, 1934, the sale being confirmed on August 27, 1934. On October 11, 1934, the appellants filed the suit out of which this-appeal arises for a declaration that the sale of the equity of redemption in the revenue proceedings was invalid and was not binding upon them as mortgagors. Originally there was also a prayer for taking accounts of the mortgage under the Dekkhan Agriculturists Relief Act. The trial Judge dismissed the suit. There was an appeal to the District Judge who confirmed the decree of the trial Court. Before the lower appellate Court the claim for accounts was given up and the appeal was pressed only as regards the contention that the sale of the equity of redemption by the revenue authorities was not binding on the appellants.

2. It is not disputed that the respondent mortgagee was a superior holder within the meaning of Section 3, Sub-section (13), of the Bombay Land Revenue Code,, and the plaintiffs inferior holders as against him. Nor is it disputed that the respondent was entitled as such superior holder to apply for assistance to the Collector under Section 86 of the Bombay Land Revenue Code, It is contended however that it was not open to the revenue authorities in granting assistance to order the sale of the appellants' equity of redemption. Section 86 of the Bombay Land Revenue Code provides that superior holders shall, upon written application to the Collector, be entitled to assistance, by the use of precautionary and other measures, for the recovery of rent or land revenue payable to them by inferior holders. There is nothing in the Bombay Land Revenue Code which would prevent the Collector from directing in a case such as this that the defaulting tenants' interest in the land should be sold for recovery of the amount made payable to the superior holder. It is contended however that such an order would conflict with the principle underlying O. XXXIV, Rule 14, of the Code of Civil Procedure. That rule provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. It is conceded that in terms the provisions of the rule cannot apply to sales ordered under the provisions of the Bombay Land Revenue Code. In the first place the rights which the respondent sought to enforce by his application for assistance to the revenue authorities were not his rights as mortgagee but his rights as superior holder under the terms of the rent note. Further there is in this case no decree obtained by the mortgagee but merely an order for assistance from the revenue authorities. In terms therefore the rule clearly cannot apply to a sale held by the revenue authorities under Section 86 of the Bombay Land Revenue Code.

3. It is contended however that the principle underlying the rule must be held to govern sales under the Bombay Land Revenue Code also. We were referred to the decision in Ibrahim walad Goolam v. Nihalchand (1919) I.L.R. 44 Bom. 366. In that case a property had been mortgaged with possession and on the same day the mortgagor executed a rent note in favour of the mortgagee. On default in payment of rent the mortgagee filed a suit and obtained a decree for rent due, and sought to execute the decree by the sale of the mortgagor's equity of redemption in the mortgaged property. It was held that the claim on which the mortgagee got a decree was really a claim for payment of money in satisfaction of the claim arising out of the mortgage and was therefore governed by the provisions of O. XXXIV, Rule 14, of the Code of Civil Procedure. But in that case the mortgagee had obtained a decree of a civil Court for recovery of the amount due to him for rent, and it having been held that his claim though nominally one for rent was in effect one for interest due on the mortgage and that the decree was really a decree for payment of money in satisfaction of a claim arising under the mortgage, it was therefore governed by the provisions of O. XXXIV, Rule 14. The facts in the present case are different. As B have already pointed out, no decree for the payment of money has been obtained. The claim or suit for assistance was filed not as mortgagee but as landlord or superior holder, and the assistance was given on that basis. There is nothing in the provisions of the Bombay Land Revenue Code to suggest that the powers of assistance which the Collector has under Sections 86 and 87 are in any way fettered by the provisions of O. XXXIV, Rule 14, of the Civil Procedure Code. It may be very unfortunate that by resort to the remedies given to him under the Bombay Land Revenue Code the mortgagee has been able to deprive the mortgagor of the rights which he would have had under the ordinary law. But that is a disadvantage which the mortgagor must face if he chooses to execute a rent note in favour of his mortgagee and thereby makes him a superior holder for the purposes of the Bombay Land Revenue Code and gives him all the privileges which a superior holder has under the Bombay Land Revenue Code as regards the recovery of rent due to him. The provisions of Sections 86 and 87 of the Bombay Land Revenue Code are deliberately intended to give superior holders a speedy and simple method of recovering their arrears. Discretion is left to the Revenue authorities to refuse to give such assistance in cases in which the question at issue between the superior holder and the inferior holder is of a complicated or difficult nature. But where the Revenue authorities choose to exercise the power which Sections 86 and 87 give them, there is nothing in the Land Revenue Code which renders the exercise of those powers subject to the provisions of O. XXXIV, Rule 14, or of the principle underlying that rule. As the learned District Judge has pointed out, it was open to the appellants to apply to the Collector under Section 178 of the Bombay Land Revenue Code to set aside the sale within thirty days from the date of the sale. Since they did not do so and the sale was confirmed, it was no longer open to them to sue in a civil Court to get the order made by the Revenue authorities set aside. The appeal is dismissed with costs.

Beaumont, C.J.

4. I agree. I would only add a few words. It seems to me that O. XXXIV, Rule 14, lays down no general principle. All that the rule does is to forbid avoidance of a general principle by the particular means mentioned. The general principle is that embodied in the maxim 'once a mortgage always a mortgage', which means that once the Court comes to the conclusion that the transaction is a mortgage the mortgagor is entitled to redeem the property, and he cannot be deprived of that right except by proceedings for foreclosure, or by some method laid down by the legislature. Order XXXIV, Rule 14, provides in substance that a mortgagor cannot be deprived of his equity of redemption by the mortgagee obtaining a money decree against him, and then enforcing that decree by the ordinary process of execution. He can only sell the property under a mortgage suit, and that rule has been applied where interest on the mortgage is actually payable in the form of rent under a rent note; that is Ibrahim walad Goolam v. Nihalchand (1919) I.L.R. 44 Bom. 366. It is not disputed in this appeal that a mortgagee who lets the mortgagor into possession under a rent note is a superior holder, and the mortgagor is an inferior holder, within the meaning of the Bombay Land Revenue Code, and that the mortgagee is therefore entitled to apply to the Collector for a sale of the property as a means of recovering the rent under the rent note. If the Collector makes an order for sale of the property, that no doubt does deprive the mortgagor of his right to redeem, but that is done under the terms of the particular statute. It is quite obvious that O. XXXIV, Rule 14, does not apply in terms, and as I have said, in my opinion that rule does not lay down any general principle. It may be unfortunate that by an application under the Bombay Land Revenue Code the mortgagor can be deprived of his right to redeem, but that is a matter for the legislature. It is impossible for this, Court to say that such a sale is invalid.


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