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Kodoth Ambu Nair Vs. Echikan Cherekere Kelu Nair - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Judge
Reported in(1933)35BOMLR807
AppellantKodoth Ambu Nair
RespondentEchikan Cherekere Kelu Nair
DispositionAppeal dismissed
Excerpt:
.....he then brought a suit for redemption in which it was held that though the respondent's remedy in execution of the compromise decree was long since barred, the remedy by suit was still open to him, and that the suit was not barred by section 47 of the civil procedure code, 1908. on appeal :;that the mortgagee's conduct in the proceedings in the suit on the simple mortgage, in which he tacitly acknowledged the right of redemption as being still alive, estopped him from now taking the plea that the mortgagor's only remedy was by execution of the compromise decree.;a party cannot both approbate and reprobate. he cannot say at one time that the transaction is valid and thereby obtain some advantage to which ho could only be entitled on the footing that it is valid, and at another..........by the subordinate judge and his decision was confirmed on appeal, the courts holding that the remedy by execution was barred on the expiry of three years from the date of the decree, i.e., in january, 1902.10. the respondent then instituted the suit out of which the present appeal has arisen praying for redemption, and was met by the plea that his only remedy was in execution, and that this remedy had already been held to be time barred.11. this contention was rejected by both courts in india. upon an examination of the authorities they came to the conclusion that the remedy by suit was still open to the respondent. the subordinate judge was also of opinion that having regard to the proceedings in the suit on the simple mortgage the appellant was estopped from asserting the.....
Judgment:

George Lowndes, J.

1. The only question in this appeal is whether the respondent is entitled to redeem a certain mortgage. If this right, which has been affirmed by both Courts in India, is exereisable, it is not disputed that the decree passed by the Subordinate Judge on August 16, 1924, is correct.

2. The mortgage in question was dated December 8, 1892, and was executed by members of the Beloor Maloor Tarwad in favour of the appellant. On, September 13, 1897, the appellant brought a suit on the mortgage which was compromised, and a decree dated January 2, 1899, was passed in accordance with the compromise. The terms of this decree were in effect that the mortgagors should pay to the appellant within three years a sum of Rs. 31,000, together with a yearly rent in kind : that in default of payment of the Rs. 31,000, or of the rent, the appellant should be entitled to obtain, by process of execution, possession of the property, and to retain the same as usufructuary mortgagee, the mortgagors having the right to redeem in any year thereafter on payment of the Rs. 31,000, and to obtain delivery of the property 'by taking out execution.

3. No rent was paid and in March of the following year possession was taken by the appellant under the decree. It is not disputed that the appellant remained in possession as mortgagee, but it is said that the mortgagors' only remedy was by execution of the compromise decree, and that remedy is long since barred.

4. On December 7, 1901, the appellant made a further advance of Rs. 1675 to the mortgagors on the security of a simple mortgage of the same properties.

5. On December 20, 1909, the equity of redemption of the mortgagors was sold in execution of a money decree which had been passed against them in other proceedings and was purchased by one Subbaraya Kamthi who on April 22, 1913, assigned his rights to the respondent.

6. On September 18, 1912, the appellant sued on the simple mortgage of December 7, 1901. He joined as defendants the karnavan of the mortgagor tarwad and Subbaraya Kamthi, who was described as having purchased the equity of redemption subject to the mortgage in suit and to the usufructuary mortgage for Rs. 31,000 which obviously meant the mortgage under the compromise decree. The prayer of the plaint was for payment of the sum due under the simple mortgage and that in default the property should be sold and the sale proceeds 'applied in payment of what may be found due to the plaintiff subject to or free from the previous usufractuary mortgage in favour of the plaintiff's tarwad, as the court deems fit.

7. On November 22, 1912, a decree was passed in this suit in favour of the appellant providing for sale, in default of payment, subject to the usufructuary mortgage, and a final decree for sale on these terms was made on September 12, 1914.

8. On December 17, 1918, after two separate applications had been made by the appellant for sale of the property, the respondent applied to pay off the decree in right of his assignment from Subbaraya Kamthi, In his petition, of which notice was given to the appellant, he referred to the decree as having been passed subject to the payment of the Rs. 31,000 due under the compromise decree of January 1899, and made it clear that his object in making the payment was to redeem the earlier mortgage. By consent of both parties the sum claimed as due under the simple mortgage, which amounted to Rs. 6,115-12-0, was brought into Court and was paid out to the appellant on December 18, 1918, in full satisfaction of the decree.

9. The respondent then applied in execution of the compromise decree to redeeem the usufructuary mortgage. His application was resisted by the appellant as out of time. It was rejected on this ground by the Subordinate Judge and his decision was confirmed on appeal, the Courts holding that the remedy by execution was barred on the expiry of three years from the date of the decree, i.e., in January, 1902.

10. The respondent then instituted the suit out of which the present appeal has arisen praying for redemption, and was met by the plea that his only remedy was in execution, and that this remedy had already been held to be time barred.

11. This contention was rejected by both Courts in India. Upon an examination of the authorities they came to the conclusion that the remedy by suit was still open to the respondent. The Subordinate Judge was also of opinion that having regard to the proceedings in the suit on the simple mortgage the appellant was estopped from asserting the contrary. The learned Judges of the High Court came to no specific conclusion on the question of estoppel, basing their judgment on other grounds, but they affirmed the facts upon which the Subordinate Judge had relied. They say :-

It is clear therefore from those proceedings that in 1912, i.e., about twenty years after Exhibit A, the deed of mortgage, and over twelve years after the rajinama decree, the mortgagee treated the first mortgage as subsisting and got a decree on the second mortgage on that basis.

12. In the event a decree was passed by the Subordinate Judge in the respondent's favour on August 16, 1924, providing for redemption on the terms therein set out, and this was affirmed in the High Court by the dismissal of the appeal.

13. Their Lordships while not disagreeing with the view taken by the learned Judges of the High Court, are of opinion without going further into his question that the defence raised by the appellant was not open to him. On the terms of the compromise decree of 1899 they think that it was not the intention of the parties that the remedy by execution should alone be open to the mortgagors. Seeing that it would, as the Courts have held, be barred after three years, such a construction would manifestly defeat the main object of the compromise which was to leave the mortgagors in possession for three years, and if after the expiry of that period the mortgage debt was not paid to allow the appellant to take possession, and again if and after he had so done to entitle the mortgagors to redeem. That the appellant understood this to be the intention is clear from the proceedings in the suit on the simple mortgage, which was based upon the right of redemption being still alive ; the prayer of the plaint would on the face of it have allowed both mortgages to be paid off on a sale. It is, their Lordships think, equally clear that it was upon the same understanding that the respondent came in and paid off the decree in this suit, and that the appellant accepted the payment. On no other view of the facts could he have realised the decretal amount.

14. Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman J. in Smith v. Baker (1873) L.R. 8 C.P. 350

at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage.

See also per Lord Kenyon C.J. in Smith v. Hodson (1790) 2 sm. L.C. 140 where the same expression is used.

15. It is objected for the appellant that this view of the case is not admissible inasmuch as no estoppel was pleaded and no issue was framed with regard to it. It is clear, however, that the question was raised before the trial Judge and that the appellant had a sufficient opportunity then of meeting it. Nor is it suggested now that there are any other material facts which could have been proved had the issue been formally raised. Their Lordships, therefore, think that this objection has no weight.

16. For the reasons given they think that this appeal fails and should be dismissed with costs, and they will humbly advise His Majesty accordingly.


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