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Mareppa Panditeppa Bhojannavar Vs. Gundo Annaji Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 735 of 1916
Judge
Reported in(1918)20BOMLR469
AppellantMareppa Panditeppa Bhojannavar
RespondentGundo Annaji Deshpande
DispositionAppeal allowed
Excerpt:
.....act (xvii of 1879), section 13(d)-mortage-suit for account-mortgage bond taken in satisfaction of decree-account of decretal debt cannot be taken afresh under the accounts suit.;in satisfaction of a decree passed against him, the plaintiff executed a mortgage for rs. 1480 in defendant's favour. at the plaintiff's suit to take accounts of the mortgage under the provisions of the dekkhan agriculturists' belief act, the lower courts treated rs. 860 out of the mortgage amount as representing the original principal under the earlier decree and allowed interest only on that sum. the defendant having appealed :-;that interest should be calculated on the whole amount of rs. 1480, for in the present case original interest had not been converted into principal at any statement or settlement of..........do not find that that view is warranted by the provisions of section 13 which enacts that 'in the account of principal there shall not be debited to the debtor any accumulated interest which has been converted into principal at any statement or settlement of account or by any contract made in the course of the transactions.' but here this original interest has not been converted into principal at any statement or settlement of account or by any contract made between the parties. the conversion has taken place by means of the decree of the court, and by that decree a single integral sum was awarded to the defendant as a judgment-debt. upon the mere provisions of the act, therefore, i should be of opinion that the defendant's contention is right, and that he must be allowed interest upon.....
Judgment:

Stanley Batchelor, Kt., Acting C.J.

1. This was a suit under the Dekkhan Agriculturists' Relief Act to take accounts of a mortgage executed by the plaintiffs to the defendant, and for a declaration as to the sum due upon it. The defendant obtained a decree against the plaintiffs and their Bhaubands for Rs. 3,132-10-0, made up of Rs. 1,500 principal, Rs. 233 costs and the balance interest. The plaintiffs' share admittedly was one-half. But by reason of a remission this sum was reduced to Rs. 1,480 only for which a mortgage was made.

2. The question before us is whether under the Dekkhan Agriculturists' Relief Act this sum of Rs. 1,480, part of the decretal debt, is to be regarded as the principal sum, or whether for the purposes of the agriculturist mortgagor it can now be resolved into its component elements of Rs. 866 principal and Rs. 614 interest. Now the section of the Act admittedly applicable to the present circumstances is Section 13 Clause (d) is especially cited by the learned Judge below, who holds that the only principal chargeable against the debtor is the original sum of Rs. 866. But I do not find that that view is warranted by the provisions of Section 13 which enacts that 'in the account of principal there shall not be debited to the debtor any accumulated interest which has been converted into principal at any statement or settlement of account or by any contract made in the course of the transactions.' But here this original interest has not been converted into principal at any statement or settlement of account or by any contract made between the parties. The conversion has taken place by means of the decree of the Court, and by that decree a single integral sum was awarded to the defendant as a judgment-debt. Upon the mere provisions of the Act, therefore, I should be of opinion that the defendant's contention is right, and that he must be allowed interest upon the judgment of Rs. 1,480. This view is confirmed by the decision of this Court in Tatya Vithoji v. Bapu Balaji (1883) I.l.R. Bom. 330, where Mr. Justice West points out that where a contract has been made the subject of adjudication by the Court, it is thenceforward merged in the decree, and there is no warrant for the revision of the decree, or the opening up of the account upon that footing. No doubt Section 18 allows the Court to go behind a private settlement or a private contract, but I can find nothing in it which empowers the Court to go behind a civil Court's decree in which any preceding contract between the parties is necessarily merged. The learned Judge below relied for his decision upon Kisandas v. Ramehandra : (1911)13BOMLR1009 . But it appears to me that this case affords no authority for the Judge's determination. The only point there decided, as I read the learned Judge's judgment, was whether the Court's sanction to a certain mortgage bond under Section 257A of the old Code of Civil Procedure, debarred the trial Judge from going into the question whether the principal sum shown in the mortgage bond consisted partly of interest or not. It was decided that the Court had jurisdiction to go into that question notwithstanding the Court's sanction of the mortgage bond. There was no decision to the effect that under the Dekkhan Agriculturists' Relief Act the Court is empowered to go behind a previous decree, and to resolve that judgment-debt into principal and interest, and the only observation occurring on this point in the judgement is clearly obiter.

3. On those grounds, I am of opinion, that the appeal should be allowed, and that the interest must be calculated on the sum of Rs. 1,480. At the request of the pleaders, the appeal will be remanded to the lower Court in order that the decree may be amended in accordance with this judgment. The appellant to have his costs. The cross-objections are dismissed with costs.

Kemp, J.

4. There appears to me to be another reason why this appeal should succeed. The decree in Suit 361 of 1896 was for Es. 3,132-10-0. The plaintiff's share of that liability was Rs. 1,566-5-0, and, on the 17th August 1898, the mortgage bond for Rs. 1,480 with possession was passed. Now, if the mortgagor had not agreed to pay Rs. 1,480, who can say whether the judgment-creditor would not have insisted on receiving the whole amount of the principal in Suit 351 of 1896 from him The judgment-creditor agreed to take approximately half the amount of the decree, the whole of which he might have executed against his judgment-debtor. That being so, the mortgagor cannot now be allowed to say that he is only liable to pay half the amount of principal. I, therefore, agree that the appeal should be allowed with costs and the case remanded for amendment of the decree.


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