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Ladu Chimaji Vs. Babaji Khanduji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom532
AppellantLadu Chimaji
RespondentBabaji Khanduji
Excerpt:
dekkhan agriculturists' relief act xvii of 1879 as amended by act xxii of 1882, section 15(b) - mortgage foreclosure--instalments. - - he failed to satisfy the condition; 2. in the cases in which the mortgage deed has not so expressly provided for a transfer of the ownership on failure of payment, the analogy of the lahan-gahan mortgage has, in many instances, been followed. until the order operates to transfer the ownership, it is subject to revision on good cause shown......he could have applied for it. when the order for a foreclosure is made, it operates of itself to transfer the ownership when the time has expired, and the ownership having passed to the mortgagee cannot be taken back from him by a subsequent order not founded on any new transaction or change in the jural relations of the parties. until the order operates to transfer the ownership, it is subject to revision on good cause shown. after it has operated, the effect can be got rid of only on some special ground, such as fraud or inevitable accident, which should be the subject of a special proceeding. the court would thereon consider the possibility of acceding to the application without injustice, especially to new rights which might have intermediately arisen. a mere application to the.....
Judgment:

West, J.

1. The applicant in this case, being the mortgagor of property of the defendant, sued to enforce redemption on the terms provided by the Dekkhan Agriculturists' Relief Act. The account was made up as that Act directs, and the mortgagor was directed to pay the sum found to be due within six months, or to be foreclosed for ever against redemption. He failed to satisfy the condition; and the property thus, according to the ordinary practice of the Mofussil, vested in the mortgagee. The second order--which, according to the practice of the English Equity Courts, is applied for after the expiration of the time prescribed for redemption--is made as of course on such application Fisher on Mortgages (1876), . 1771. It appears to be contemplated by the Form No. 129 appended to the Code of Civil Procedure, but it is not prescribed in the Act itself. In this Presidency it has not been used. The mortgage called lahan-gahan, stipulates for transfer of the ownership to the mortgagee on non-payment of the debt at a specified date. The Court interferes with the literal terms of this contract, but on condition of satisfaction being made within a defined time. Falling this, effect is given to the contract by allowing the property to pass to the mortgagee and conditional vendee. No second order is jurally necessary when a condition has been fulfilled which has made a prior order operative. The ownership is constituted by an act of the Court equally under a first order as under a second or a third, which would be made as of course.

2. In the cases in which the mortgage deed has not so expressly provided for a transfer of the ownership on failure of payment, the analogy of the lahan-gahan mortgage has, in many instances, been followed. Sometimes a sale, is ordered, sometimes a fore closure. The latter is the common order when a mortgagor sues the mortgagee to redeem the property. It gives him time to make the requisite arrangement, and if he had desired a sale he could have applied for it. When the order for a foreclosure is made, it operates of itself to transfer the ownership when the time has expired, and the ownership having passed to the mortgagee cannot be taken back from him by a subsequent order not founded on any new transaction or change in the jural relations of the parties. Until the order operates to transfer the ownership, it is subject to revision on good cause shown. After it has operated, the effect can be got rid of only on some special ground, such as fraud or inevitable accident, which should be the subject of a special proceeding. The Court Would thereon consider the possibility of acceding to the application without injustice, especially to new rights which might have intermediately arisen. A mere application to the Court for an order to pay by instalments cannot give the Court authority to take away the property vested by its previous order. The new owner may have sold the property, and boundless confusion might arise from the allowance of such applications as the one made in the present case. We think it cannot be entertained.


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