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Hari Mahadaji Savarkar and anr. Vs. Balambhat Raghunath - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1885)ILR9Bom233
AppellantHari Mahadaji Savarkar and anr.
RespondentBalambhat Raghunath
Excerpt:
mortgage - redemption--tacking--interest--regulation v of 1827, sections 11 and 12--act xxviii of 1855--act xiv of 1870--act i of 1868--damdupat. - - 3. it has been contended before us that the defendants ought to have their costs of suit according to the well-established rule but here the defendants denied the plaintiff's right to redeem without payment of what was due on two other instruments, which, in our opinion, was a sufficient ground for departing from the rule......however, it has been decided that the rule of damdupat is not affected by the acts of limitation-ganpat pandurang v. adarji dadabhai i.l.r. 3 bom. 313. the defendants cannot, therefore, be allowed more than its. 102 for interest, that being the amount of the principal sum on which it was agreed to be paid.3. it has been contended before us that the defendants ought to have their costs of suit according to the well-established rule but here the defendants denied the plaintiff's right to redeem without payment of what was due on two other instruments, which, in our opinion, was a sufficient ground for departing from the rule.4. we must, therefore, vary the decree by allowing the defendants rs. 254-7-0 instead of rs. 225-7-0 in respect of principal and interest, and confirm it in all.....
Judgment:

Charles Sargent, C.J.

1. We agree with the Subordinate Judge that the language of the bonds (exhibits 42 and 43) does not create a further charge on the mortgaged premises, although it would prevent the original mortgagor, who passed the bonds, from redeeming without paying their amounts. This is in accordance with the construction placed by the Court in Mama v. Martand See infra, p. 236 on similar language.

2. As to the number of years of interest which the mortgagee can claim, we think that the Subordinate Judge was wrong in considering that Section 12, Regulation V of 1327, was applicable. That section was repealed by section I of Act XXVIII of 1855; and although the latter section was repealed by Act XIV of 1870, still Section 12 of Regulation V was not restored, there being no express provision in Act XIV of 1870, which revived it, as required by Section 3 of Act I of 1868. The question, therefore, has to be determined by the Limitation Act XV of 1877, which was in force when the suit was brought. And by article 132 of that Act, money due on immoveable property is not barred before the expiration of twelve years. However, it has been decided that the rule of damdupat is not affected by the Acts of Limitation-Ganpat Pandurang v. Adarji Dadabhai I.L.R. 3 Bom. 313. The defendants cannot, therefore, be allowed more than Its. 102 for interest, that being the amount of the principal sum on which it was agreed to be paid.

3. It has been contended before us that the defendants ought to have their costs of suit according to the well-established rule but here the defendants denied the plaintiff's right to redeem without payment of what was due on two other instruments, which, in our opinion, was a sufficient ground for departing from the rule.

4. We must, therefore, vary the decree by allowing the defendants Rs. 254-7-0 instead of Rs. 225-7-0 in respect of principal and interest, and confirm it in all other respects. Parties to pay their own costs of this appeal.


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