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Shankar Shamrao Vs. Shankaragandayya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 192 of 1907
Judge
Reported in(1908)10BOMLR538
AppellantShankar Shamrao
RespondentShankaragandayya
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (xv ii of 1879), section 15b-decree-instalments-power to award fresh instalments.;where a decree allowing instalments has already been obtained, section 15b of the dekkhan agriculturists' relief act, 1879, does not permit the executing court to reconsider the whole matter afresh with a view to the substitution of some new scheme of instalments.;the second clause of section 15b of the dekkhan agriculturists' relief act 1879, refers only to those cases where directions for payment have already been given under the first clause. - .....and the decree had been obtained against him before the introduction of the dekkhan agriculturists' relief act into the dharwar district.2. that decree provided for payment of the mortgage-debt in three instalments, and it was ordered that if default were made in the payment of any instalment, then the mortgagee was to be empowered to bring the property to sale.3. default having been made, an application was presented by the mortgagee for the sale of the property. this application was granted by the first class subordinate judge at dharwar.4. in appealing from that order the judgment-debtor has taken two points before us. in the first place it was said that, inasmuch as the dekkhan agriculturists' relief act had been extended to the dharwar district when this.....
Judgment:

Batchelor, J.

1. The appellant here is the judgment-debtor-mortgagor, and the decree had been obtained against him before the introduction of the Dekkhan Agriculturists' Relief Act into the Dharwar District.

2. That decree provided for payment of the mortgage-debt in three instalments, and it was ordered that if default were made in the payment of any instalment, then the mortgagee was to be empowered to bring the property to sale.

3. Default having been made, an application was presented by the mortgagee for the sale of the property. This application was granted by the First Class Subordinate Judge at Dharwar.

4. In appealing from that order the judgment-debtor has taken two points before us. In the first place it was said that, inasmuch as the Dekkhan Agriculturists' Relief Act had been extended to the Dharwar District when this application in execution came before the Subordinate Judge, he should have reconsidered the whole matter under Section 15(b) of the Dekkhan Agriculturists' Relief Act. and should have passed such order as to instalments as to him seemed fit. But there is nothing in Section 15(b) to warrant the view that the Legislature intended that where a decree allowing instalments had already been obtained, the whole matter should be reconsidered afresh by another Court with a view to the substitution of some new scheme of instalments, and we do not think that this was intended. Secondly, it was urged that the lower Court's order deprived the mortgagor of the benefit which he might have obtained under the second clause of Section 15(b). But, in our opinion, the second clause refers only to those cases where directions for payment have already been given under the first clause, and that is not the case here.

5. We must, therefore, confirm the decree order under appeal and dismiss this appeal with costs.


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