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Ganesh Eknath Kaulgi Vs. Bhausaheb Bhawanrao Deshmukh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 167 of 1921
Judge
Reported in(1921)23BOMLR1037
AppellantGanesh Eknath Kaulgi
RespondentBhausaheb Bhawanrao Deshmukh
DispositionAppeal dismissed
Excerpt:
.....lands-application for recovery of full amount by attachment and sale of the property.;where a decree on a mortgage, which had become inoperative under the watan act, provides for satisfaction of the mortgage debt by payment of an annual sum out of the profits of the mortgaged lands, it is not open to the decree-holder to apply to the court to execute the decree for recovering the full amount due by attachment and sale of other property in the hands of the judgment-debtor. - - for the award decree clearly contemplates satisfaction by payment of an annual sum out of the profits of certain mortgaged lands, whereas the court is now asked to recover the full amount due by attachment and sale of other property in the hands of the mortgagor or his legal representatives. 125 in any..........against the heir of the vatandar. that being so, any arrangement, or even any decree, based on the mortgagee's rights under such mortgage must also be void against the heir of the vatandar. such an arrangement or decree cannot be put on any higher footing than the transaction of mortgage on which it is based. no doubt it is possible that the applicant may have certain rights to recover what the opponent's father has failed to pay under the decree, e. g., in consequence of the liability of a hindu son to pay the debts of his father. but that is an entirely distinct cause of action, and the subordinate judge has rightly held that any such claim can only be made in a properly framed suit. it is obviously not a case that can be dealt with under section 47, civil procedure code, for the claim.....
Judgment:

Fawcett, J.

1. The Subordinate Judge has held that the application in effect asks him to vary the prescribed mode of satisfaction under1 the decree on the award and that as an executing Court he cannot do so. It seems to me that he is justified in that view; for the award decree clearly contemplates satisfaction by payment of an annual sum out of the profits of certain mortgaged lands, whereas the Court is now asked to recover the full amount due by attachment and sale of other property in the hands of the mortgagor or his legal representatives.

2. The appellant's pleader relies on the provision in the decree that, if the payment should fall short of Rs. 125 in any particular year, then the mortgagor should make good the amount from his other private resources. It is open to question whether that particular provision is a valid one, in view of the decisions in Havgovandas v. Mohanbhai (1900) 2 Bom L.R. 31 and Damodar v. Vyanku I.L.R (1906) Bom. 224: 9 Bom. L.R. 199 to the effect that no money decree against a mortgagor can come into existence until the stage provided for by Section 90 of the Transfer of Property Act (now Order XXXIV, Rule 6, Civil Procedure Code) has been reached. That stage has certainly not been reached in the present case. But even assuming that this particular provision could be authority for the application now under consideration, it seems to me that this will not avail the applicant. The real objection to the Darkhast is the fact that under the ruling in Padapa v. Swamirao (I.L.R 1900) IBom. 556: 2 Bom. L.R. 548. p. c. the mortgage was in its inception void against the heir of the Vatandar. That being so, any arrangement, or even any decree, based on the mortgagee's rights under such mortgage must also be void against the heir of the Vatandar. Such an arrangement or decree cannot be put on any higher footing than the transaction of mortgage on which it is based. No doubt it is possible that the applicant may have certain rights to recover what the opponent's father has failed to pay under the decree, e. g., in consequence of the liability of a Hindu son to pay the debts of his father. But that is an entirely distinct cause of action, and the Subordinate Judge has rightly held that any such claim can only be made in a properly framed suit. It is obviously not a case that can be dealt with under Section 47, Civil Procedure Code, for the claim will not be one relating to the execution, discharge or satisfaction of the decree but will arise from a right different from applicant's rights under the decree. The appeal is, therefore, summarily dismissed.


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