Sharad Manohar, J.
1. Introductory paragraph -- The above two WritPetitions arise out of cognate proceedings between the same parties. Decision on Writ Petition No. 3438 of 1980 will obviate the decision on Special Civil Application No. 1284 of 1978 more or less completely. However, we are stating facts relating to both the Writ Petitions which are, more or less, common.
2. Facts relating to both the petitions -- Petitioner No. 1 in Special Civil Application No. 1284 of 1978 (who will be referred to hereinafter as 'the mortgagor') is, admittedly, the original owner of the suit property which is C.T.S. No. 926, Peth Bhag, Sangli. On 22nd January 1962, he executed a document purporting to be a mortgage by conditional sale (Exhibit 41) of the suit property in favour of the petitioner in Writ Petition No. 3438 of 1980. (He will be referred to hereinafter as 'the mortgagee'.) The mortgage was for a sum of Rs. 7,500/- and it was to be repaid within 5 years after which repayment the property was to be reconveyed to the mortgagor. The document contains a recital that the possession was handed over by the mortgagor to the mortgagee; but, as will bepresently pointed out, it is more or lesscommon ground that it is the mortgagor whois in possession of the suit property even as onthis date.
On 8th January 1963, the mortgagor executed another document, this one purporting to be a sale deed (Ex. 42) in respect of the Same property for the total sum of Rs. 8,000/-. Consideration for this sale deed included the earlier amount of loan of Rs. 7,500/- which was to be adjusted towards the price of the property and the additional amount of Rs. 500/- was shown as paid in cash.
It is, more or less, an undisputed fact that, at the time of these two transactions, the mortgagor was heavily indebted. As has been held by the Courts of competent jurisdiction later on, the above sale deed, Ex. 42, was a sham transaction entered into by the parties with a view to defraud the creditor. On 9th April 1963, therefore, the mortgagee's creditors filed Insolvency Application No. 5 of 1963 for getting the mortgagor adjudicated asan insolvent. Not only this, but even the mortgagor filed Insolvency Application No. 7 of 1964, the very next year, for himself being adjudicated as an insolvent. This was filed on 4th December 1964.
As a result of these two proceedings, the mortgagor, was adjudicated as an insolvent by the Court's order dated 8th January 1965 and one Shri K. R. Gandhi, Advocate, was appointed as the Receiver in respect of the property belonging to the insolvent. In 1965, the Receiver filed an application to the Insolvency Court for a declaration that the sale-deed, Ex. 42, dated 8th January 1963 in favour of the mortgagee was a sham document and, as such, was null and void. Evidence was led by parties, and the Insolvency Court did give such declaration in favour of the Receiver (in a sense, in favour of the body of creditors) holding that the sale-deed, Ex. 42, was a sham transaction; that it was not the result of passing of any valuable consideration to the insolvent at all; that it was the result of collusion between the mortgagor and the mortgagee; that possession of the property was never received by the mortgagee and that the entire document and transaction were null and void.
A plea was sought to be agitated before the Court that petitioner No. 2 in Special Civil Application No. 1284 of 1978 who is the brother-in-law of the mortgagor, petitioner No. 1 in that petition, was the tenant of the mortgagee and was in possession in that character. That plea was also rejected by the Court. This order was passed on 26th August 1968.
The Appeal against the said order, Misc. Civil Appeal No. 50 of 1968, was dismissed by the learned Extra Assistant Judge, Sangli. The finding recorded by the trial Court, therefore, stood confirmed.
3. Statement of facts contd. -- This takes us to the statement of facts in relation to the other Special Civil Application, viz., Special Civil Application No. 1284 of 1978.
On 18th November 1968, the mortgagee sent a notice to the brother-in-law of the mortgagor Padmakar Daulatrao Chivate(petitioner No. 2 in Special Civil Application No. 1284 of 1978) alleging that -
(a) he was the tenant of the mortgagee and
(b) he was in arrears of rent for a period exceeding 6 months. The addressee of the notice was called upon to pay the arrears of rent within one month.
It has been the consistent contention of both the mortgagor as well as his brother-in-law Chivate that Chivate was never the tenant of the mortgagee and that the possession of the property was never handed over by the mortgagor to the mortgagee or by the mortgagee to Chivate. Naturally, therefore, Chivate did not pay any rent to the mortgagee. The mortgagee, therefore, filed Civil Suit No. 61 of 1969 in the Court of Joint Civil Judge, Senior Division, Sangli, on 2nd April 1969. Chivate, brother-in-law of the mortgagor, was defendant No. 1 in that suit. The allegation made against him was that he had taken the suit property on rent from the mortgagee and that he was in arrears of rent for a period exceeding 6 months. Possession was, therefore, demanded from said Chivate. But, in the plaint, an averment was also made that the mortgagee (Sic) was in possession of the suit property; meaning thereby not Chivate, the alleged tenant of the mortgagee, but the mortgagor himself was in possession of the suit premises. Written statement was filed by both the defendants, the mortgagor-defendant No. 2 and his brother-in-law-defendant No. 1. Their defence was common. Both of them denied the tenancy of Chivate. Both of them contended that the mortgagor himself was all along in possession of the suit property.
In addition to the above, they raised two further contentions -
(a) that the mortgage stood quashed and extinguished and the mortgagee's right had come to an end by virtue of the order dated 26th August 1968 passed by the Insolvency Court, and
(b) that leave of the Insolvency Court was necessary in the present case because the property had vested in the Receiver and that,without the leave of the Insolvency Court, the suit was not maintainable.
In pursuance of these pleadings in said Civil Suit No. 81 of 1969, the trial Court framed two preliminary issues, firstly on the question whether the suit was maintainable in the absence of leave from the Insolvency Court and, secondly, on the question as to whether the deed of mortgage stood extinguished resulting in disentitling the mortgagee from claiming possession. The findings were recorded on both the issues by the trial Court against the mortgagor.
Against the findings on the two preliminary issues, Special Civil Application No. 2784 of 1980 was filed by the mortgagor and his brother-in-law; but these findings were confirmed by this Court (V. S. Deshpande, J.). This Court held that what was set aside by the Insolvency Court was the sale-deed, Ex. 42, and not the document of mortgage, Ex. 41. This Court also held that the leave from the Insolvency Court was not necessary for a mortgagee in possession in a suit for possession from his own tenant. This order is dated 13th March 1975.
In 1976, the mortgagor filed Civil Suit No. 626 of 1976 for redemption of the mortgage, Ex. 41. In that suit, it is specifically contended that the subsequent sale-deed, Ex. 42, was a sham and bogus document, implying thereby that it was never intended to be acted upon. We are informed that the redemption suit is still pending.
It is mentioned above that this Court (V. S. Deshpande J.) had confirmed the finding of the trial Court on the two preliminary issues in the mortgagee's suit No. 81 of 1969. After the said decision, the trial Court proceeded with the said suit and passed the decree for possession of the same in favour of the mortgagee. Evidently, the decree was, in substance, against the mortgagor because, as per the uniform contention of all the three parties, it was the mortgagor who was in possession of the suit property on the date of that suit as also on the date of decree in that suit.
4. Statement of facts contd.- In 1976, the mortgagor filed an application to the Authorised Officer under the Maharashtra Debt Relief Act, 1975 (i.e., before the Special Executive Magistrate) for a declaration that the debt which was the subject-matter of mortgage, Ex. 'A', of Rs. 7,500/-, stood extinguished because the mortgagor was a debtor within the meaning of that Act.
5. Re. Writ Petition No. 3438 of 1980 The four points urged by Mr. Apte.-- As stated above, the order that we propose to pass in Writ Petition No. 3438 of 1980 will obviate the examination of the various questions raised in Special Civil Application No. 1284 of 1978. Let us, therefore, examine the questions arising out of and pleas raised in Writ Petition No. 3438 of 1980.
Mr. Apte, the learned Advocate appearing for the petitioner (mortgagee) in that petition, urged four following points in support of the petition;--
(i) The effect of the order of annulment of the insolvency proceedings, according to him, was that even the order dated 26th August 1968 passed by the Insolvency Court and confirmed by the District Court in Misc. Civil Appeal No. 50 of 1968 stood annulled and that the parties were relegated back to the position obtaining before the date of adjudication or, in fact, even before the date of the filing of the petition.
(ii) In view of the sale-deed, Ex. 42 (validity of which stood revived by virtue of the order of annulment dated 26th June 1971), there existed no debtor and creditor relationship between the mortgagor and the mortgagee on the date of the order of the authority under the Maharashtra Debt Relief Act holding the mortgage to be extinguished and, hence, the order passed by the authority was without jurisdiction.
(iii) The value of the suit property exceeded Rs. 20,000/ - and, hence, the authority had no jurisdiction to hold that the debt was extinguished.
(iv) In any event, the proceedings initiated by the Application filed by the mortgagor/ debtor to the authority under the Maharashtra Debt Relief Act were without jurisdiction because no debtor could apply for the relief asked for by the mortgagor because no such application could be filed by a debtor for the relief under the Act.
We have set out the points not in the order in which they have been set out or urged by Mr. Apte but in the order in which we propose to examine them.
6. Point No. 1 The effect of the order of annulment.-- From the chronology of events mentioned above, it becomes clear that, though the mortgagor was adjudicated an insolvent on 8th January 1965 and though the insolvency Court had passed an order on 26th August 1968 holding the sale-deed, Ex. 42, to be null and void for all purposes and even though that order was confirmed by the appeal Court in Misc. Civil Application No. 50 of 1968, still there was the subsequent order of annulment of the adjudication order passed by the Insolvency Court on 26th June 1971 under Section 43 of the Provincial, Insolvency Act, 1920. The effect of the order of annulment is set out in Section 37 of the Act. We are concerned with Clause (1) of Section 37 which runs as follows :--
'37(1) Where an adjudication is annulled, all sales and dispositions of property and payments duly made, and all acts therefore, done, by the Court or receiver, shall be valid; but, subject as aforesaid, the property of the debtor who was adjudged insolvent shall vest in such person as the Court may appoint, or, in default of any such appointment, shall revert to the debtor to the extent of his right or interest therein on such conditions (if any) as the courts may by order in writing declare.'
Mr. Apte's argument is that the result of the order of annulment is that the parties are relegated back to the position which they enjoyed before the date of the adjudication. According to him, the debtor and creditor relationship between the mortgagor and mortgagee had snapped on 8th January 1963 when the sale-deed (Ex. 42) was executed by the mortgagor. No doubt, that relationship was revived by virtue of the order dated 26th June 1971 passed by the Insolvency Court; but, upon annulment of the adjudication, argued the Counsel, the adjudication must bedeemed not to have taken place at all. This would mean that the order dated 26th June 1971 stood wiped off and was bereft of any legal consequence. The sequitor sequestrator of this was that there existed no debtor-creditor relationship between the parties on 14th April 1980 when the authorized officer under the Maharashtra Debt Relief Act held that the debt under the mortgage stood extinguished.
If the effect of the order of annulment was as extensive as the learned Counsel argued and if the Declaration dated 26th August 1968 stood wiped off, the argument would have some force; but the argument over looks the in-built saving provision contained in said Section 37(1)(1) which is extracted above. The evident savings are in respect of -
(i) all sales and dispositions of property made by the Court during the insolvency proceedings before the date of the annulment;
(ii) all payments duly made by the Court or by the Receiver before the date of the annulment;
(iii) all acts done by the Court or by the Receiver till the date of annulment.
Question, then, is whether the declaration given by the Court on 26th August 1968 was one of the 'acts theretofore done by the Court' or not. If the declaration was one of the 'acts', the declaration was saved and it evidently continued. On the other hand, if the declaration was not one of the 'acts' contemplated by the said Section 37, then, perhaps, something could be said in favour of Mr. Apte's argument.
At least prima facie and upon the plain reading of said Section 37(1), we find no justification for holding that the Declaration dated 26th August 1968 did not answer the description of the 'acts' referred to in said Section 37(1). After all, the Court acts in a number of ways. When the Court grants any declaration, it cannot be said not to have performed some 'act'. A decree passed by the Court is one of the acts. An order passed by the Court is another such act. Even a mere declaration given will be another act. Point is that the expression 'acts' is wide enough totake in its fold the declaration made by the Court such as the one dated 26th August 1968. On the plain reading of the section, therefore, it is somewhat difficult to accept Mr. Apte's contention.
Mr. Apte relied upon certain authorities in support of his contention that, upon the order of annulment, every order passed by the Court became non-existent or non est. Mr. Shah, on the other hand, relied upon quite a few authorities in support of his submission that the order of annulment had no effect upon the declaration already given by the Insolvency Court holding the particular sale-deed to be void. We will presently examine those authorities. Here, we are concerned with the interpretation of the section on the basis of its plain reading.
In this connection, Mr. Apte also relied upon the subsequent portion of said Clause (1) of Section 37. By the subsequent portion, the effect of the order of annulment is provided for. The effect is that the property which stood vested in the Court or in the Receiver till the date of the annulment would, from the date of the annulment, stand vested in such person as the Court may appoint and if the court does not make any appointment of any person for that purpose, the property, it is provided, shall revert to the debtor, no doubt, to the extent of his right and interest therein. On the basis of this provision, the Counsel argued that no order was passed by the Insolvency Court appointing any person in whom the property should vest. He argued that the property must, therefore, go back to the person to whom it was to belong before the date of the adjudication.
We are afraid, the argument is not quite correct. In the instant case, the effect of the declaration was that the property vested in the Receiver because the order of appointment of Receiver was very much there. If no order was passed by the Court directing the property to continue to vest in the Receiver or if there was no other order passed by the Court directing the property to vest in any other person, the third result contemplated by said clause (1) is that it would revert back to the debtor. That means it would vest back in the debtor. Theincident of vesting is not mentioned in the order because there is no order passed in that behalf. It could be, therefore, legitimately argued that it would vest in the debtor entirely. We make it clear that we are not called upon to decide this question as to whom, in given circumstances, the property would revert for certain. Point here is that it would either vest in the person appointed by the Court or it would revert back to the debtor. No position is contemplated by the said clause (1) that the property would revert back, in the case such as the present one, to the ostensible purchaser under the sale-deed, Ex. 42. The purchaser under sale-deed, Ex. 42, was the mortgagee/creditor. Said clause (1) does not provide that the property would go to the mortgagee/creditor. If at all it reverts back, it would revert to the mortgagor/debtor. The argument advanced by Mr. Apte, in fact, boomerangs against his own contention.
7. Authorities examined.-- This brings us to the examination of authorities cited across the Bar.
(a) we will first deal with the authorities relied upon by Mr. Apte. The first authority was AIR 1943 Mad 453. In that case, one Nagaraj Shetty made a gift of the property in question in favour of his wife in 1926. Later on, in October 1926, he was adjudicated an insolvent and, in the insolvency proceedings, the gift-deed was set aside by the Insolvency Court. In March 1928, the adjudication was annulled; but, although the gift-deed was set aside, the Official Receiver did not find it necessary to take recourse to the sale of the said property for the purpose of the payment of the creditors because it was found that the sale of that property was not necessary for satisfying the claims of the creditors in full. In the meantime, insolvent Nagaraj Shetty made a will upon the assumption that the gift already stood set aside. Hence, by the will, he bequeathed the property upon his wife herself for her lifetime.
Question arose whether the gift stood set aside finally or whether the order of annulment had the effect of setting at naught the setting aside of the gift. In the peculiar factsof the case, the Madras High Court held that the gifted property was not necessary for the full payment of the creditors and, hence, the setting aside of the gift-deed was of no legal consequence, so far as the title of the donee was concerned.
In our opinion, the decision must be restricted to the facts of that case. The Madras High Court had not considered in that case the effect of the words 'all acts theretofore done by the Court or Receiver shall be valid'. We are taking this view having regard to the plain reading of the section as also having regard to a judgment of this Court as also of the Kerala High Court which had decided the question with reference to the above expression.
(b) The next authority relied upon is AIR 1956 Mad 341. In that case, the position was that a sale-deed in respect of some property was executed by a Hindu co-parcener, presumably the Karts, for discharge of antecedent debt of his father. The co-parcener/ Karta was adjudicated an insolvent and, in the insolvency proceedings, the sale was set aside. The adjudication was, later on, annulled. Before the annulment, the property which was available to the Receiver for sale for satisfying the claims of the creditors was not sold by the Receiver.
In the context of this fact, it was held that the effect of the annulment of adjudication was to restore the sale in favour of the alienee.
We have gone through the judgment and we find that this judgment is also based upon the peculiar facts of the case, viz., that the property was not touched by the Receiver at all. We do not suggest that, if the property is not touched, it partakes of the legal character which it had before the date of the adjudication. What we are driving at is that, even in this case, the Court does not seem to have considered the effect of the words 'all acts theretofore done by the Court or Receiver' obtaining in said Section 37(1) of the Insolvency Act.
(c) The next authority relied upon by Mr. Apte is the judgment of the Madras High Court in AIR 1930 Mad 278. However, we donot appreciate the purpose for which it was relied on. In that case, the adjudication of the insolvent was annulled by he Court but before the annulment proceedings were started by the Official Receiver for setting aside certain transfer made by the insolvent before the order of adjudication. Those proceedings were pending on the date of the order of annulment. The proceedings for setting aside the transfer (which was a mortgage) were obviously pending on the date of annulment. The Court held that the Receiver was entitled to continue with the proceedings.
We fail to see how this decision helps Mr. Apte. If at all, the decision would be deemed to mean that the act of the Receiver of the institution of the proceedings would not stand wiped off or invalidated and would not cease to be operative even after the order of annulment. In Section 37(1), there is no difference made between the act of the Receiver and act of the Court done during the insolvency proceedings before the date of annulment. If the act of the Receiver was valid, there is no reason why it should not be held that the act of the Court also would be valid. Far from helping Mr. Apte, therefore, the above authority, in fact, goes to suggest the legal provision contrary to the one suggested by the learned Advocate.
(d) quite a few authorities were cited by Mr. Shah appearing for the respondent/mortgagor. He has referred to two Bombay judgments and one Kerala judgment in addition to some other authorities, Examination of the above three judgments is, in our opinion, enough to lay down the legal position.
(i) The Kerala authority relied upon by the learned Advocate is more to the point. In : AIR1969Ker211 , the expression 'act done by the Court or Receiver' was specifically examined by the High Court. In that case, one of the debtors of the insolvent had filed a petition before the Official Receiver stating that, on taking accounts, it would be found that the insolvent owed monies to the said petitioner who was believed to be the debtor of the insolvent and that no debt was owed by him to the insolvent's estate at all. The OfficialReceiver examined the question and passed an order fixing the amount due from the said debtor to the estate of the insolvent. Evidently, he negatived the debtor's plea that the estate of the insolvent owed monies to that person; but, while doing so, the Official Receiver also held that a particular amount was due from the debtor to the insolvent, nothing more, nothing less. After the passing of this order by the Receiver, the adjudication was annulled. Question was whether the above order passed by the Receiver fixing the particular amount to be due by the estate of the insolvent from the debtor was an 'act' of the Official Receiver or not. It was held-that it was an 'act' as contemplated by Section 37(1) of the Act and that, therefore, the same was saved by the saving provision contained in said Section 37(1).
In our opinion, this is a direct authority on the question arising in the present case. Even in the present case, the position is that it was act of the Court holding the sale-deed, Ex. 42, executed by the mortgagor in favour of the mortgagee to be void. We see no reason why that order does not amount to an 'act' within the contemplation of said Section 37(1).
(ii) Two authorities of the Bombay High Court are referred to.
In AIR 1949 Bom 129, it was held that the Insolvency Court had jurisdiction to decide question of title under Section 4 of the Insolvency Act. Section 4 of the Act gives full and untrammelled power to the Insolvency Court to decide all questions whether of title or of priority, or of any nature whatsoever, and whether involving matters of law or facts. The Bombay judgment took the view that there was a finality attached to such adjudication. If this is the position, then it is futile to contend that the order passed by the Insolvency Court holding the sale-deed, Ex. 42, to be void and illegal would stand set at naught by virtue of the subsequent annulment of the adjudication.
(iii) We may also usefully refer to the judgment of this Court in : AIR1944Bom72 . It is true that the question raised in the present petition was not raised in that case in the manner in which it was raised here, viz.,whether the Court's act of setting aside the sale was an 'act' within the meaning of Section 37(1) of the Act or not. The tenor of the judgment (which is a Division Bench judgment) does give indication that the Court had in view the same legal position that we are contemplating. In that case, the Court came to the conclusion that, when a Receiver files an application for setting aside a sale made by the insolvent before the adjudication, the proceedings would be continue by the Receiver even after the date of the annulment of the adjudication. But, for coming to this view, the Court did not rely upon the latter part of Section 37(1) giving power to the Court to direct the property to vest in the Receiver. The sum total of the judgment shows that the Court considered the act of the Receiver of filing application for setting aside the fraudulent sate was an 'act' within the meaning of action 37(1) and that, therefore, the act was not set at naught by virtue of the order of annulment.
There are other authorities cited by Mr. Shah; but, in our opinion, it is unnecessary to examine them. In our opinion, both upon the plain reading of Section 37(1) as also upon the authorities, it has got to be held that the declaration granted by the Insolvency Court holding the said Ex. 42 to be void was an 'act' within the contemplation of said Section 37(1). The declaration made by the competent Court, therefore, continued, the annulment notwithstanding.
The examination of the above authorities clearly shows that nothing in those authorities can persuade us to take a view different from the one which we have taken upon the plain reading of said clause (1) of Section 37 of the Act.
8. This Court's conclusion as regards Point No. 1.-- It follows that the view taken by the authority under the Maharashtra Debt Relief Act cannot be cavilled at. According to the authority, the sale-deed, Ex. 42, dated 8th January 1963 was non est and of no legal consequence. The position occupied by the parties of mortgagor and mortgagee, that is to say, of debtor and creditor, therefore, continued till the appointed date as contemplatedby the Maharashtra Debt Relief Act. Since all other conditions were satisfied, the view taken by the authority that the mortgage debt stood extinguished was quite correct.
9. Point No. 2 No debtor-creditor relationship between the parties.-- The second point need not detain us at all because it stands automatically answered by the answer to the first point. If the sale-deed was null and void, the original mortgage deed, Ex. 41, continued to be in force. This means that the debtor and creditor relationship between the parties continued. The authority under the Maharashtra Debt Relief Act was, therefore, very much within its jurisdiction to hold that the debt stood extinguished.
10. Point No. 3 Does the value of the suit property exceed Rs. 20,000/-? Pure question of fact.-- The third point which relates to the value of the suit property is a pure question of fact. The authority has examined all the relevant circumstances to come to the conclusion that the value of the property did not exceed Rs. 20,000/- at the material time. It is not possible for us to interfere with the said finding.
11. Point No. 4 Whether the debtor can apply under the Maharashtra Debt Relief Act.-- The fourth point urged by Mr. Apte is that the scheme of the Maharashtra Debt Relief Act does not give a locus standi to the debtor to file an application for declaration that the debt was extinguished. He may or may not be right on that point if we look at it with strict technicality. But, in our opinion, the point is quite academic so far as the present proceedings are concerned. The Act provides that the debt would stand extinguished if certain objective fact existed. The jurisdiction to decide whether the objective fact existed or not is given to the authority under the Maharashtra Debt Relief Act. That authority has decided that the debt did stand extinguished. As to at whose behest and upon whose application the proceedings which culminated in the said decision were set afoot is, in our opinion, of purely academic value. The Court exercising its writ jurisdiction will not be justified in interfering with the decisionof such hyper-technical point.
But, that apart, in our opinion, the argument is not quite sound even on merits.
12. The final conclusion in W.P. No. 3438 of 1980.-- We see no justification to interfere with the order passed by the authority under the Maharashtra Debt Relief Act holding that the debt under the mortgage, Ex. 41, stood extinguished. The writ petition must, therefore, fail.
13. Re. Special Civil Application No. 1284 of 1978.-- The following position evolves as a result of the above discussion :--
(a) The debtor-creditor relationship between the mortgagor and mortgagee continued till the appointed date contemplated by the Maharashtra Debt Relief Act.
(b) The mortgage amount was less than Rs. 7,500/- and the value of the suit property was less than Rs. 20,000, - on that date.
The debt, thus, stands extinguished. As per the Maharashtra Debt Relief Act, the mortgagor is, in fact, entitled to recover back possession of the suit property from the mortgagee if the mortgagee was put in possession of the same. But, admittedly, the mortgagor has been in possession of the suit property at ail the relevant times. The averments made by the mortgagee in his Plaint in said Suit No. 81 of 1969 as also in the Written Statements filed by both the defendants, by the mortgagor as well as by his brother-in-law Chivate, lead to the same conclusion. This is, perhaps, the only point at which all the parties were added. The mortgagee had filed the suit against his alleged tenant Chivate for possession of the suit property with the contention that he was a tenant in arrears of rent; but, in that suit, he had joined the mortgagor as defendant No. 2 on the ground that the mortgagor or defendant No. 2 was in possession of the suit property. Both the defendants had filed Written Statements stating in unison that the mortgagor was in possession of the suit property. The possession of the mortgagor in respect of the suit property is, therefore, an admitted fact. The result, therefore, is that as from the date when the mortgaged debt stood extinguished, themortgagee ceased to have any right, title and interest in the suit property. The suit filed by him against his alleged tenant Chivate in which he had impleaded the mortgagor because the latter was in possession might be defective on several grounds. We wish to express no opinion on that point. Point is that he was entitled to obtain possession from the mortgagor who was defendant No. 2 in that suit on the basis of his contention that he had right, title and interest in the suit property not only vis-a-vis defendant No. 1 Chivate but also vis-a-vis defendant No. 3, the mortgagor. If he had no title to file said suit, the decree obtained by him must be quashed and set aside.
14. The final order.-- The result is that -
(a) Writ Petition No. 3438 of 1980 fails. The Rule issued therein earlier stands discharged.
(b) Special Civil Application No. 1284 of 1978 succeeds. The Rule issued therein earlier is hereby made absolute.
However, there shall be no order as to costs in either of the petitions.
Both the Civil Applications Nos. 4185 of 1989 and 4186 of 1989 are accordingly allowed with no order as to costs.