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Yashvant Shenvi and ors. Vs. Vithoba Sheti, Deceased by His Minor Son - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom231
AppellantYashvant Shenvi and ors.
RespondentVithoba Sheti, Deceased by His Minor Son
Excerpt:
.....of claimant to sue within a year after date of order--civil procedure code (act xiv of 1882), sections 278, 279, 280, and 283--limitation act xv of 1877, schedule ii, article 11. - - but these provisions are satisfied by construing them as intended to make the equity of redemption conditional on the payment of both the debts. it was, therefore, clearly an order passed against the defendant, and one which he could not say the court had not jurisdiction to make......he pays off both the debts; but these provisions are satisfied by construing them as intended to make the equity of redemption conditional on the payment of both the debts. this construction, moreover, receives corroboration from the allusion to the old debt as a distinct and separate transaction, which would have no significance if the intention was to make the rs. 100 a charge equally with the rs. 64. it is further to be observed that the entire income of the property had been previously appropriated in lieu of the interest on the debt of rs. 64. but although the rs. 100 was not, in our opinion, made a charge on the property, the equity of redemption was made conditional on the payment of the two debts; and we do not think that the remarks of the court in rama v. martand l.r., 9 bom......
Judgment:

Charles Sargent, C.J.

1. We think that the Subordinate Judge was right in his construction of the mortgage-deed, (exhibit 29). There are no words in that instrument which expressly make the old debt of Rs. 100 a charge on the property. The mortgagor undertakes to pay it together with the Rs. 64 when he takes back the land, and also agrees to the mortgagee's continuing in the enjoyment of the land till he pays off both the debts; but these provisions are satisfied by construing them as intended to make the equity of redemption conditional on the payment of both the debts. This construction, moreover, receives corroboration from the allusion to the old debt as a distinct and separate transaction, which would have no significance if the intention was to make the Rs. 100 a charge equally with the Rs. 64. It is further to be observed that the entire income of the property had been previously appropriated in lieu of the interest on the debt of Rs. 64. But although the Rs. 100 was not, in our opinion, made a charge on the property, the equity of redemption was made conditional on the payment of the two debts; and we do not think that the remarks of the Court in Rama v. Martand L.R., 9 Bom. 236 note would be applicable to such a condition. The by-agreement in that case was in the most general and indefinite terms, and would necessarily have embarrassed the mortgagor in the exercise of the equity of redemption.

2. Whether the purchaser, under the special circumstances under which the property was put up for sale, would be bound by the above condition, it is not necessary to decide, as we are of opinion that the plaintiff is right in his contention that as the first defendant has not taken proceedings to establish his right within a year, notwithstanding the order made against him in March, 1881, in the summary proceedings, he is now estopped from insisting on the condition. It has been urged, indeed, on behalf of the defendant, that although his application was headed as made under Section 278, the order which was passed on it was not one contemplated by Sections 280 and 281. The application was, in terms, that 'an order might be made that proceedings should go on keeping alive his lien' which he had previously stated in the application to be for Rs. 164. The Court by its order only gave effect to this application to the extent of Rs. 64. It thus appears that the object of the defendant, although not in terms, was virtually that the Court should allow only the equity of redemption on discharge of a mortgage for Rs. 164 to be attached and sold, and the Court by its order fro tanto rejected the application. It was, therefore, clearly an order passed against the defendant, and one which he could not say the Court had not jurisdiction to make. We may also remark that Section 280 contemplates not only the entire release of the property from attachment, but also the retention of the attachment to such extent as the Court thinks fit. His right should, therefore, have been established by suit within a year. We must, therefore, reverse the decree of the Court below, and restore that of the Subordinate Judge. Costs on defendant throughout.


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