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Apuji Ramchandra Kulkarni Vs. Guja Mhadu Dhangar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 161 of 1915
Judge
Reported in(1918)20BOMLR164
AppellantApuji Ramchandra Kulkarni
RespondentGuja Mhadu Dhangar
DispositionAppeal dismissed
Excerpt:
.....mortgagee. the mortgagee-defendant pleaded the decree of 1899 as a bar to the suit: -;(1) that the suit was barred under section 11 of the civil procedure code, if it be treated as a suit for redemption of the mortgage of 1859 ;;(2) that it was barred under section 47 of the code, if it be treated as based on the decree of 1899 taken along with the subsequent conduct of the parties in not executing the decree and in allowing the possession to remain with the mortgagee as before. - - 47, civil procedure code, so far as it is based upon the decree of 1899, that the present plaintiff is not in any better position than his mortgagor, and that as dhondibai could not have maintained a second suit to redeem her mortgagee after the decree the plaintiff cannot maintain it. the plaintiff's..........a mortgage with possession, the mortgagee never obtained possession of the mortgaged property. the present suit was filed on the 19th june 1912 by bapuji kulkarni against the sons and heirs of dhondibai to enforce this mortgage. the defendant, jivraj motiram, in dhondibai's suit, was joined in the present suit as defendant no. 3 as a party in possession. though the suit in form was to enforce the mortgage, it was in substance a suit to redeem against defendant no. 3 on the footing of his being a mortgagee at the date of the suit, and was so treated by the trial court. the defendant 3 pleaded the decree of 1899 as a bar to the suit. it is not necessary to refer to defendants 4 and 5 for the purposes of this appeal.2. the trial court dismissed the suit as against defendants nos. 3 to 5 and.....
Judgment:

Shah, J.

1. The facts, which have given rise to this second appeal are briefly these : one Dhondibai on behalf of her minor sons sued in 1897 to redeem a mortgage of the year 1859 in respect of the land in dispute. In that litigation a decree was passed by the Special Judge under the Dekkhan Agriculturists' Relief Act on the 8th April 1899 the material portion of which is as follows:-'I set aside the decree of the lower Court and order that plaintiff do pay to the defendant Rs. 99 in payment of the mortgage-debt in respect of the land referred to in the plaint. Defendant do forthwith give possession of the land in dispute to the plaintiff. Plaintiff do pay Rs. 99 to the defendant by annual instalments of Rs. 25 each... Plaintiff should pay the assessment of the land and take the profit. If any threo instalments remain unpaid, defendant should recover the amount remaining due by sale (after obtaining the Court's permission for sale) of the mortgaged property or a sufficient portion thereof.' This decree was not executed either by Dhondibai or by the defendant in that case. The possession remained with the defendant, who did not take any steps to have the property sold. On the 2Gth May 1899 Dhondibai mortgaged the property to the present plaintiff Bapuji Ramchandra Kulkarni. Though it purported to be a mortgage with possession, the mortgagee never obtained possession of the mortgaged property. The present suit was filed on the 19th June 1912 by Bapuji Kulkarni against the sons and heirs of Dhondibai to enforce this mortgage. The defendant, Jivraj Motiram, in Dhondibai's suit, was joined in the present suit as defendant No. 3 as a party in possession. Though the suit in form was to enforce the mortgage, it was in substance a suit to redeem against defendant No. 3 on the footing of his being a mortgagee at the date of the suit, and was so treated by the trial Court. The defendant 3 pleaded the decree of 1899 as a bar to the suit. It is not necessary to refer to defendants 4 and 5 for the purposes of this appeal.

2. The trial Court dismissed the suit as against defendants Nos. 3 to 5 and the lower appellate Court confirmed the decree of the trial Court. We are now concerned only with this part of the decree.

3. It is urged on behalf of the plaintiff, who has appealed to this Court, that his claim to redeem the mortgage is not barred. It is contended that as the decree of 1899 remained unexecuted, the original mortgagee (i.e. the present defendant 3) must be deemed to have continued in possession as a mortgagee, that the amount ascertained to be clue to him under the decree of 1899 might be accepted as boing payable to him and that his position would be for all practical purposes that of a mortgagee with possession after that decree. In support of the maintainability of the present suit Mr. Gokhale has relied upon Rama v. Bhagchand I.L.R. (1914) Bom. 41 : 16 Bom. L.R. 687 and Siita Ram v. Madho Lal I.L.R. (1901) All. 44. f.B. On behalf of defendant No. 3 it is argued in reply that the present suit is barred by a. 47, Civil Procedure Code, so far as it is based upon the decree of 1899, that the present plaintiff is not in any better position than his mortgagor, and that as Dhondibai could not have maintained a second suit to redeem her mortgagee after the decree the plaintiff cannot maintain it. It is contended that the present case is governed by the ruling in Hari Ravji Chiplunkar v. Shapurji Hormasji Shet I.L.R. (1886) Bom 461, P.C.. Mr. Kane has also relied upon Vedapuratti v. Vallabha Valiya Raja I.L.R. (1901) Mud. 300; Ranga Ayyangar v. Narayana Chariar I.L.R. (1915) Mud. 896; Gan Savant Bal Savant v. Narayan Dhond Savant I.L.R. (1883) Bom. 467; and Maloji v. Sagaji I.L.R. (1888) Bom. 567. His argument is that the case of Rama v. Bhagchand is distinguishable on its facts, and that in any case having regard to the decisions referred to by him it should not be accepted as a binding authority.

4. It is true that the decree of 1899 was passed under the Dekkhan Agriculturists' Relief Act, and the provisions of Section 93 of the Transfer of Property Act or the corresponding provisions of Order XXXIV of the Code of Civil Procedure would not apply to such a decree (see Kashinath Vinayak v. Rama Daji I.L.R. (1916) Bom. 492 : 18 Bom. L.R. 475. It may be that until an application is made under Section 15B of the Dekkhan Agriculturists' Relief Act for the sale of the property the mortgagee's position may continue to be the same with reference to the mortgagor. But this circumstance would not make any difference in the result in this case. Here we have to deal with the effect of a decree the execution of which was admittedly time-barred at the date of the suit.

5. On the facts of this case it seems to me clear that the plaintili'can maintain the present suit only if it could be shown that his mortgagor could have maintained a second suit for redemption. The plaintiff's mortgage was effected after the decree of 1899. Though the mortgagor's right to execute the decree was not barred at the date of the mortgage, I do not think that he can be in any better position than his mortgagor.

6. The question is whether the mortgagor could have maintained a second suit for redemption. It seems to me clear that she could not have done so. Whether the second suit be treated as one for the redemption of the mortgage of the year 1859 or whether it be treated as based on the decree taken along with the subsequent conduct of the parties in not executing the decree and in allowing the possession to remain with the mortgagee as before, it would be barred by the decree of 1899. In so far as the suit is based on the decree and the (subsequent conduct, of the parties, the judgment of their Lordships of the Privy Council in Hari Ravji Chiplunkar's case affords a complete answer. The decision is not the less applicable to the present case simply because the plaintiff here acquired an interest in the equity of redemption before the execution of the decree was barred, and not after it was barred as in the case before the Privy Council. Thus Section 47 of the Code of Civil Procedure bars the present suit.

7. Even if the present suit be treated as a suit for redemption of the mortgage of 1859, it seems to me that the suit would be barred under Section 11 of the Code of Civil Procedure. The first suit was tried and decided on the merits, and the second suit by the mortgagor would be clearly barred by the terms of Section 11 of the Code. In the case of Rama v. Bhagchand, relied upon by the appellant, the mortgagor had not sued to redeem and had not obtained a decree in the first instance. I am not prepared to extend the ratio decidendi of that case to a case where the mortgagor has filed a suit for redemption and obtained a decree in that suit and has subsequently filed another suit to redeem the same mortgage. I do not see how the second suit for the redemption of the same mortgage could be entertained, when the first suit was heard and decided on the merits in respect of the same matter, in view of the provisions of Section 11 of the Code of Civil Procedure.

8. It is not necessary to consider the further arguments addressed to us with reference to the case of Rama v. Bhagchand.

9. It is also not necessary to consider the question whether a mortgage effected by Dhondibai could give the plaintiff any interest in the equity of redemption which belonged to her sons, the present defendants 1 and 2.

10. The result is that the decree of the lower appellate Court is affirmed and the appeal dismissed with costs.

Heaton, J.

1. I agree.

2. In my opinion the mortgage of 1859 was put an end to by the decroe of 1899 and thereafter the relations between those who had formerly been mortgagor and mortgagee were determined by that decree. The plaintiff in this case became possessed by assignment in the form of a mortgage of whatever rights under that decree the mortgagors of 1859 or their successors possessed. He obtained no other rights as against the present defendant No. 3. He could not, in my opinion, bring a suit to redeem a mortgage, for there was no mortgage to redeem, there was only a decree to execute. He had rights under that decree and those rights he could have exercised in the way permitted by the law, that is, by an application to execute the decree. This he failed to do, and he has failed so continuously that it has now become impossible for him to make any effective application to execute that decree. He has, therefore, it seems to me, lost whatever rights he once possessed in regard to that decree. This conclusion, although I have stated it in the form which appeals to my particular view of the case, is, I think, the decision that would necessarily be reached by applying the principles which are enunciated in the Privy Council case of Hari Ravji Chiplunkar v. Shapurji Hormasji Shet I.L.R. (1886) Bom. 461. referred to by my learned brother.


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