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Tatya Vithoji Vs. Bapu Balaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom330
AppellantTatya Vithoji
RespondentBapu Balaji
Excerpt:
.....appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration petition filed by appellant on ground of lack of jurisdiction. - 1. the court in a case like the present is not at liberty to go behind a previous decree between the parties. we have to look to the precise relation created by the earlier decree, and the extent to which it has been satisfied, and to these alone, to determine the present relations of the parties under that decree. 160. the plaintiff was to hold and enjoy the mortgaged land until that sum should be paid......until that sum should be paid. the defendant was also to pay the plaintiff's costs. he actually paid rs. 40. the costs amounted to rs. 22-15-4, and the plaintiff might properly appropriate so much out of the rs. 40 to that part or his claim. there then remained due to him a sum of rs. 142-15-4. this sum the defendant (now plaintiff) still owes, and under the decree of 1874 must pay as the consideration of recovering his land.3. it is said there was a subsequent agreement between the parties, modifying the terms of the decree: but this, not having been certified to the court, cannot be taken notice of as against the mortgagee's rights as judgment-creditor, though it may be made the ground for a separate suit.4. the decrees of the courts below are reversed, and the rights and.....
Judgment:

West, J.

1. The Court in a case like the present is not at liberty to go behind a previous decree between the parties. This was ruled in Apaji Yadav Kulkarni v. Atmaram Daji Kulkarni Printed Judgments for 1882 p. 125.

2. Here the decree, it is argued, gives effect to a contract in a mortgage in a particular way, and is, therefore, to be regarded as a contract subject to revision under Section 13 of Act XVII of 1879. But the distinction between a contract and a judgment is so great that the latter extinguishes the former, as Lord Selborne says in Lockyer v. Ferriman L.R. 2 Ca. 519; and that entirely different principles apply to them in case revision should be sought, was shown in Balkrishna Bhalchandra v. Gopal Raghunath I.L.R. 1 Bom. 73. Hence the revision and re-adjustment of the account made by the Courts below were not warranted. We have to look to the precise relation created by the earlier decree, and the extent to which it has been satisfied, and to these alone, to determine the present relations of the parties under that decree. The defendant was to pay Rs. 160. The plaintiff was to hold and enjoy the mortgaged land until that sum should be paid. The defendant was also to pay the plaintiff's costs. He actually paid Rs. 40. The costs amounted to Rs. 22-15-4, and the plaintiff might properly appropriate so much out of the Rs. 40 to that part or his claim. There then remained due to him a sum of Rs. 142-15-4. This sum the defendant (now plaintiff) still owes, and under the decree of 1874 must pay as the consideration of recovering his land.

3. It is said there was a subsequent agreement between the parties, modifying the terms of the decree: but this, not having been certified to the Court, cannot be taken notice of as against the mortgagee's rights as judgment-creditor, though it may be made the ground for a separate suit.

4. The decrees of the Courts below are reversed, and the rights and obligations of the parties defined as aforesaid. The plaintiff is to pay the defendant's costs throughout.


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