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Ramchandra Kolatkar Vs. Mahadji Kolalkar - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom141
AppellantRamchandra Kolatkar
RespondentMahadji Kolalkar
Excerpt:
.....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. - mahadji, however, instead of again, offering to redeem under the decree the property included therein, in which ramchandra had not acquired the equity of redemption as well as the mortgage right, filed a separate suit......pleaded a prior partition, and alleged that he held the portions of certain lands sought by moro as mortgagee. this the subordinate judge found to be true, and he decreed for redemption, on payment by moro, of the amount due under the mortgages and costs fending the litigation moro's agent; krishnaji sold to mahadaji, the present plaintiff, moro's interest in one of the properties mortgaged. after the decree his interest in the other property mortgaged was sold to one hari sakharam. these two purchasers came forward, and in a joint application offered to pay their quotes of the amount decreed on condition of the respective properties being given up to them by the mortgagee ramchandra. this application the subordinate judge rejected on the ground that mahadaji having become moro's.....
Judgment:

West, J.

1. In this case Moro sued Ramchandra for partition Ramchandra pleaded a prior partition, and alleged that he held the portions of certain lands sought by Moro as mortgagee. This the Subordinate Judge found to be true, and he decreed for redemption, on payment by Moro, of the amount due under the mortgages and costs Fending the litigation Moro's agent; Krishnaji sold to Mahadaji, the present plaintiff, Moro's interest in one of the properties mortgaged. After the decree his interest in the other property mortgaged was sold to one Hari Sakharam. These two purchasers came forward, and in a joint application offered to pay their quotes of the amount decreed on condition of the respective properties being given up to them by the mortgagee Ramchandra. This application the Subordinate Judge rejected on the ground that Mahadaji having become Moro's assignee before the decree, not after the decree had no right to get it enforced. He directed that Hari Sakharam, if so disposed, should be allowed to redeem on paying the whole sum awarded as due on the mortgages.

2. Hari Sakharam, it appears, then sold his interest to the mortgagee Ramchandra. Moro thus acquired a right, as against Ram-chandra, to redeem the other property on paying the amount properly attributable to it under the decree, and this right of Moro's centred in Mahadaji as purchaser of Moro's interest. Mahadji, however, instead of again, offering to redeem under the decree the property included therein, in which Ramchandra had not acquired the equity of redemption as well as the mortgage right, filed a separate suit. He lodged the amount found to be due on account of the mortgage of the equity of redemption of which he had become assignee from Moro's agent, and, relying on this as a, sufficient tender, claimed restoration of the land from Ramchandra.

3. Now, if the rights of Moro centred in Mahadaji by the sale to the latter, they came to him subject to the event of the suit then pending in which he did not choose, to get himself made a co-plaintiff. When the decree was passed it was' only through, a right derived from Moro that Mahadaji could have any locus standi in the further proceedings and he applied as assignee, and, therefore, as representative under Section 244 of the Code of Civil Procedure. The alternative is that he was a stranger to the proceedings under the decree, and then as Moro took no step to fulfil the decree, the right to redeem was foreclosed in six months from the decree, i.e., in May, 1880. But as representative in interest of Moro failing in the application made by him jointly with Hari Sakharam in March, 1880, Mahadaji had an appeal open to him of which he did not avail himself. He could not bring a separate suit. He did not seek to redeem his own portion when the mortgagee had acquired the rest of the property embraced in the decree, and thus, too, he became barred. As a non-representative of Moro he could not, by any step, prevent the right of the mortgagee against Moro from growing and perfecting itself during the six months allowed for redemption. In every aspect of the case his present suit is unsustainable. We must, therefore, reverse the decree of the District Court, and restore that of the Subordinate Judge, with costs throughout on the plaintiff Mahadaji.


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