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Chhotalal Karunashankar Vs. Nathubhai Dajibhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 473 of 1927
Judge
Reported inAIR1935Bom97; (1934)36BOMLR1242
AppellantChhotalal Karunashankar
RespondentNathubhai Dajibhai
Excerpt:
.....agriculturists relief act, 1879, the account of the transaction in dispute can be taken to the date of the suit and not to the date of: the decree. the account between the date of the suit and the date of the preliminary decree can be taken under the ordinary law under rule 7 of order xxxiv of the civil procedure code, and the award of interest is governed by rule 11 of the order. - - the third clause of the decree provided for an order of sale being passed should plaintiffs fail to pay, and finally an order was made for the disposal of the money lying with the receiver. dave's 'first objection was that section 13 of the dekkhan agriculturists relief act only provides for an account in the terms of that section to the date of the suit, and not to the date of the decree under rule..........principal and rs. 2,324-2-1 for interest. there was also due rs. 4,500 for improvements and rs. 4,251 for interest. as to this, this court has ruled already, that the sums spent for improvements and the interest allowed on these sums must be limited to these amounts, though the trial court has found that in fact more than rs. 4,500 was spent in the course of the mortgage term by the mortgagees on improvements. since the dekkhan agriculturists relief act has no provision for accounts between date of suit and date of preliminary decree, the general law would apply. the mortgagees were, in fact, in possession till 1924, and if the original contract then again prevails, they are not bound to account in this case. but it seems unlikely that this is the intention; as the whole contract as to.....
Judgment:

S.J. Murphy Ag., C.J.

1. This is an appeal against a decree of the First Class Subordinate Judge at Ahmedabad, in suit No. 345 of 1918, which was for redemption of a mortgage for Rs. 19,981, executed in 1877. The mortgage terms were that the mortgagees were to be in. possession of the share of the village lands mortgaged for fifty-one years, to take the rents for there interest, and to be repaid the sum secured or Expiry of the fifty-one years' term. The mortgagees were also to expend Rs. 4,500 in improvements, for it appears that the land of the mortgaged share was then largely uncultivated, and to receive Rs. 4,251 as interest on the sum so expended. The mortgage amount was made up of Rs. 8,500 to be paid in satisfaction of an earlier mortgage decree, and of Rs. 2,600 paid in cash, the balance being the amount for improvements and its interest. When the previous mortgagee came to be paid off, it was found that Rs. 436-4-2 more were due, i.e., not Rs. 8,500 but Rs. 8,936-4-2, and the mortgagees paid this amount also. In consequence of later transactions between the parties, set out in the original Court's judgment, one and a half annas of the equity of redemption was transferred to the mortgagees. There was also a transaction by which eight years were added to the term of the mortgage in consideration of a further sum lent. But this has not been considered in the present suit as we think rightly. The suit being under the Dekkhan Agriculturists' Relief Act, the contention that redemption could not be asked for before the term of the mortgage had elapsed was overruled, and for the same reason, though the mortgage did not provide for an account, one has been taken under Section 13 of that Act. Against the order that an account under the Dekkhan Agriculturists Relief Act should be taken, an appeal was made to this Court, as also against the order that interest should be calculated at nine per cent, on the amounts actually lent and spent by the mortgagees on improvements see-the judgment of this Court of December 8, 1919, and this Court decided that interest should be allowed at six Percent' on the amount lent, while that on the amount spent on improvements and interest on it should be the fixed sums of Rs. 4,500 and Rs. 4,251 agreed on.

2. Accounts have accordingly been taken on this basis. The first Judge trying the case, who made the order of December 8, 1919, referred to Section 15-B of the Dekkhan Agriculturists' Relief Act, and apparently intended later to avail himself of that section when the account was ready.

3. The Commissioner's first report was considered in 1926, and further directions were then issued to him, on September 13, 1926. A new Commissioner was appointed and he submitted a report, which was again considered, and further directions were issued to him on January 5, 1927. On his submitting a fresh statement, exhibit 235, a decree for redemption was made on January 25, 1927. This is the decree under appeal.

4. Meanwhile, the mortgagees had been in possession till 1924, when a receiver was appointed who has been in possession ever since. The decree was that a sum of Rs. 8,807-0-10 was payable to defendants as on the date of the decree, and that if the plaintiffs paid the amount and costs, both original and since the date of the original decree, the plaintiffs' 25/28th share of the whole of the property should be delivered to them, after a partition by the Collector of Ahmedabad, in order to separate the properties which had passed to the mortgagees from those remaining to the mortgagors. An order for re-transfer of the property, if required, was also made and one that a fresh receiver should be appointed to take charge from the old one, who should pay the parties their proper shares of the income till possession was handed over. The third clause of the decree provided for an order of sale being passed should plaintiffs fail to pay, and finally an order was made for the disposal of the money lying with the receiver.

5. As to the account of the second, or pula chhut mortgage for Rs. 1,000, the Court refused to take it into consideration in accordance with the original finding on issue No. 9. The difficulty here is that this mortgage was executed by some of the representatives of the original mortgagors only.

6. We have heard the appeal on the grounds of objection taken, and also on the cross-objections on which Court-fees were paid at the hearing.

7. As already mentioned, though an account was taken to the date of the decree under Section 13 of the Dekkhan Agriculturists' Relief Act, the decree itself is made under Rule 7 of Order XXXIV of the Civil Procedure Code.

8. Mr. Dave's 'first objection was that Section 13 of the Dekkhan Agriculturists Relief Act only provides for an account in the terms of that section to the date of the suit, and not to the date of the decree under Rule 7, and this is clearly the case. He relied on the following rulings:- Dadabhai v. Dadabhai I.L.R (1908) 32 Bom. 516 : S.C. 10 Bom. L.R. 745, Sakharam v. Dagadu : (1912)14BOMLR739 , Genu v. Narayan : AIR1921Bom51 , Ramchandra v. Kallo : (1915)17BOMLR630 , and Janoji v. Janoji I.L.R.(1882) 7 Bom. 185.

9. It is clear here that under the general law, the mortgage being usufructuary, an account could not have been taken as is done when Section 13 is applied. That section only provides for its being' taken to the date of the suit. Section 15-B enacts certain provisions as to the form of the decree. Whether this section should be invoked or not by the Court, is a matter of discretion, and in the present case it has not been availed of.

10. According to the Commissioner at the date of the suit, the amount due was Rs. 12,701-11-2 for principal and Rs. 2,324-2-1 for interest. There was also due Rs. 4,500 for improvements and Rs. 4,251 for interest. As to this, this Court has ruled already, that the sums spent for improvements and the interest allowed on these sums must be limited to these amounts, though the trial Court has found that in fact more than Rs. 4,500 was spent in the course of the mortgage term by the mortgagees on improvements. Since the Dekkhan Agriculturists Relief Act has no provision for accounts between date of suit and date of preliminary decree, the general law would apply. The mortgagees were, in fact, in possession till 1924, and if the original contract then again prevails, they are not bound to account in this case. But it seems unlikely that this is the intention; as the whole contract as to taking rents and profits has been set aside by invoking Section 13. It is, however, at least clear that the mortgagees are entitled to what is allowed them by Rule 7, which is their principal, interest on that sum, costs and other costs, charges and expenses with interest thereon. The interest due would be governed by Rule 11, Order XXXIV. The judgment next proceeded to deal with the merits.


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