Skip to content


YasIn Dadu Patil Vs. Kasim Babalal Patil - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 1434 of 1969
Judge
Reported inAIR1977Bom341; 1977(79)BLJR375; 1977MhLJ902
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 - Order 34, Rules 7, 7(1), 8 and 8(3); Transfer of Property Act, 1882 - Sections 60; Dekkhan Agriculturists Relief Act, 1879 - Sections 15-B
AppellantYasIn Dadu Patil
RespondentKasim Babalal Patil
Appellant AdvocateS.C. Pratap, Adv.
Respondent AdvocateM.A. Rane, Adv.
Excerpt:
.....order xxxiv, rule 8 - dekkhan agriculturists' relief act (xvii of 1879), section 15b--second suit for redemption of mortgaged property--whether right to redeem mortgage will continue to subsist notwithstanding the institution of an earlier suit for redemption and passing of a decree therein--whether section 15b of the dekkhan agriculturists' relief act contains any provision over-riding the provisions of order xxxiv, rule 8 of the civil procedure code or the right to redeem defined in section 60 of the transfer of property act.;if the mortgagor obtains a decree for redemption and the decree does not provide that in default of payment by the mortgagor he shall be debarred of all right to redeem, the right to redeem is not extinguished and the mortgagor can file another suit for..........1945? order 34 rule 8 of the code of civil procedure provides for a final decree in a redemption suit. rule 8 provides that;'8. (1) where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into court of all -amounts due from him under sub-rule (1) of rule 7, the court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order- (a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary,-- (b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property.....
Judgment:

1. The plaintiff has filed this appeal against a concurrent decree passed by both the Courts dismissing his suit on a preliminary ground that the present suit was not maintainable in view of a decree passed in an earlier suit for redemption being Civil Suit No. 235 of 1945. One Shekan Kasim Patil was the owner of survey No. 16/6 admeasuring 39 gunthas situate at village Kundalwadi, Taluka Walva, District Sangli. By a usufructuary mortgage dated June 6, 1927 Shekan Kasim Patil mortgaged this property to one Aba Farid Bargir to secure repayment of Rs. 150/- borrowed by him. Aba Farid Bargir, the mortgagee, by a registered deed of assignment dated May 25, 1938 assigned his interest in the mortgage in favour of defendant Kasim Patil. The plaintiff purchased the equity of redemption from Shekan Kasim Patil by a registered deed dated 26-10-1956. The plaintiff filed a suit in the year 1967 for redemption of this mortgage. It was inter alia contended by the defendant in the written statement that the original mortgagor Shekan Kasim Patil had filed a suit for redemption against the defendant being suit No. 235 of 1945. In that suit on November 22, 1946 a decree to the following effect was passed:--

'The plaintiff do pay to the defendants Nos. 2 to 7 Rs. 140/- together with interest thereon at 6 pel cent per annum from the date of the decree till satisfaction by two equal annual instalments. The first instalment to be paid in the month of April 1947 and the second in April 1948.

In default of payment of any instalment as aforesaid the said defendants shall realise the same by sale of a sufficient portion of the mortgaged property under Section 15-B of the Dekkhan Agriculturists' Relief Act (hereinafter referred to as 'the Act')

The plaintiff do recover possession of the suit land from the defendants forthwith. The plaintiff do pay the costs of defendant No. 3 and bear his own. The costs to be paid along with the aforesaid instalments.' The payment in accordance with this decree was not made.

2. Before the trial Court a preliminary issue was raised whether the present suit was competent in view of the decision in Civil Suit No. 235 of 1945. The trial Court took the view that the suit was not maintainable and that finding of the trial Court was confirmed in appeal by the learned District Judge, Sangli. It is against this concurrent decree passed by both the Courts on the preliminary issue that the present appeal is filed by the plaintiff.

3. Mr. Pratap on behalf of the plaintiff submitted that both the Courts were in error in taking the view that by reason of the decree passed in the earlier Civil Suit No. 235 of 1945 and the payment not being made in accordance therewith, the present suit was not maintainable. His submission is that having regard to the provisions of Section 60 of the T. P. Act unless the equity of redemption is extinguished by act of parties or by the decree of a Court the right to redeem will survive and the fact of mere institution of an earlier suit for redemption will not come in the way of the mortgagor or his successor-in title filing a fresh suit for redemption. He submitted that the right to redeem in the present case has not been extinguished either by act of the parties or as a result of the decree passed in the earlier suit and therefore a second suit for redemption is not barred. Mr. Rane, on the other hand, on behalf of the defendant submitted that in view of the provisions of Section 15-B of the Act when the decree was passed on November 22, 1946 in Civil Suit No. 235 of 1945 a final decree was passed debarring the mortgagor from the right to redeem the mortgaged property and therefore a subsequent suit for redemption could not be instituted. He, therefore, submitted that both the Courts were right in taking the view that the present suit instituted by the plaintiff was not maintainable in view of the earlier decree passed in Civil Suit No. 235 of 1945.

4. Section 60 of the T. P. Act provides for right of mortgagor to redeem. That section inter alia provides that the right of a mortgagor to redeem will subsist unless the right conferred by this section has been extinguished by act of parties or by the decree of a Court. It is not the case of either party that the right of redemption has been extinguished by act of parties. The only question that arises for consideration is, is the right to redeem the mortgage extinguished by reason of the decree passed in Civil Suit No. 235 of 1945? Order 34 Rule 8 of the Code of Civil Procedure provides for a final decree in a redemption suit. Rule 8 provides that;

'8. (1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under Sub-rule (3) of this rule, the plaintiff makes payment into Court of all -amounts due from him under Sub-rule (1) of Rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order-

(a) ordering the defendant to deliver up the documents referred to in the preliminary decree,

and, if necessary,--

(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree. 'and, also, if necessary,--

(c) ordering him to put the plaintiff in possession of the property.

(2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under Sub-rule (3) of this rule, the Court shall not pass an order under Sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in Sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent of the amount of the purchase-money paid into Court by the purchaser.

Where, such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent thereof.

(3) Where payment in accordance with Sub-rule (1) had not been made, the Court shall, on application made by the defendant in this behalf,--

(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in Rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or

(b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any be paid to the plaintiff or other persons entitled to receive the same.'

There is no order or decree passed at any time by the Court in the earlier proceedings debarring the mortgagor from all right to redeem the mortgaged property. If that is so, the right to redeem is not extinguished.

5. It is well settled that if the mortgagor obtains a decree for redemption and the decree does not provide that in default of payment by the mortgagor he shall be debarred of all right to redeem, the right to redeem is not extinguished and the mortgagor can file another suit for redemption. This view has now been settled by the Privy Council in Raghunath Singh v Hansraj Kun-war. . See Mulla's Transfer of Property Act, 6th edition page 434. What has to be considered is, is the mortgagor debarred from all right to redeem by reason of the decree that was passed in the earlier suit No. 235 of 1945. Ft is urged by Mr. Rane that as the earlier decree inter alia provided that the plaintiff do recover possession of the suit land from the defendant forthwith it is quite apparent that subsequently the mortgagor or his successor-in-interest is debarred from all right to redeem. It is not possible for me to accept this contention. Unless a specific order as contemplated 'by Rule 8 (3) of O. 34 is passed a mortgagor or his successor-in-interest is never debar-ed from his right to redeem simply because a decree in an earlier suit for redemption was passed with the terras whereof he did not comply. Unless a decree as contemplated by Rule 8 (3) of O. 34 is passed debarring the mortgagor from the right to redeem, the right to redeem will always subsist unless it is extinguished by acts of parties. In the present case, it is nobody's case that the right to redeem is extinguished by acts of parties nor is it extinguished by the decree of the Court in the earlier suit, because, the earlier decree does not contain any provision debarring the mortgagor from his right to redeem in default of payment in accordance with the provisions thereof.

6. Reliance was placed by Mr. Rane upon the provisions of Section 15B of the Act. That section confers power upon the Court to order payment by instalments in case of decree for redemption, foreclosure or sale. There is nothing in the provisions of Section 15-B which will support the contention of Mr. Rane. It does not contain any provision overriding the provisions of O. 34, R. 8 or the right to redeem denned in Section 60 of the Transfer of Property Act. On the contrary Section 15-B is enacted for the facility of a debtor rather than for depriving him of a right which otherwise is available to him in law. It cannot be interpreted to mean that it curtails the right which is normally available to a mortgagor. As in the present case the right to redeem was not barred by decree or order of the Court it subsisted even when the present suit was filed. It is well settled that a second suit for redemption is not barred by res judicata or principles analogous thereto. When the earlier suit for redemption was instituted by the mortgagor what was in issue then was whether the mortgagor was not entitled to redeem and when the subsequent suit for redemption is filed the issue is whether the mortgagor is now entitled to redeem. These issues being separate, until the right to re-deem is extinguished as contemplated by S 60 of the Transfer of Property Act or R. 8 of O. 34 of the Code of Civil Procedure, the right to redeem will continue to subsist not with standing the institution of an earlier suit for redemption and passing of a decree therein. Thus, in my opinion, both the Courts were in error in taking the view that the present suit was not maintainable in view of the decree passed in the earlier suit No. 235 of 1945.

7. In the result, the appeal is allowed. The order passed by both the Courts is set aside and it is held that the present suit is maintainable notwithstanding the decree passed in Civil Suit No. 235 of 1945. The suit is remanded back to the trial Court for determination in accordance with law. The orders as to costs passed by both the Courts are set aside and the defendant will pay the costs throughout. As this is a suit of the year 1967 the trial Court is directed to dispose of it within a period of three months from the date the papers are received by the trial Court.

8. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //