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Mancherji Hormusji Vs. Thakordas Hurkisondas - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtMumbai
Decided On
Case NumberFirst Appeal No. 157 of 1905
Judge
Reported in(1906)8BOMLR963
AppellantMancherji Hormusji
RespondentThakordas Hurkisondas
Excerpt:
.....passed for the sale of the mortgaged property and the execution was transferred to the collector- the collector sold some of the mortgaged property and ordered the rest to be sold. in the meantime the dikkhan agriculturist's relief act having been made applicable to the district, the judgment-debtor applied for instalments.;(1) that section 20 of the act does not apply to mortgage decrees:;(2) that proceedings subsequent to the decree absolute for sale are proceedings under a decree for sale within the meaning of section 15 band therefore payment by instalments can be decreed.;(3) that the application having been made within one month after the act came into force, the point of limitation did not arise. - - but in my opinion the word 'decree' must be taken to mean decree nisi as well..........mr. manubhai argued that the ' decree ' in section 15b, must refer to a decree nisi and not to a decree absolute. but in my opinion the word ' decree' must be taken to mean decree nisi as well as decree absolute. no authority was cited for the proposition that these two classes of decree are different, and in fact they cannot be.8. if this is not the true construction of the word decree, it seems an extraordinary thing that the legislature did not point out the difference in the section (his lordship read the section).9. clause 3 evidently contemplates a power in the court either in the decree nisi, or when it is made absolute, to direct that the amount payable by the mortgagor shall be discharged by continuing the mortgagee in possession.10. under this clause, therefore, a decree nisi.....
Judgment:

Louis P. Russell, Acting C.J.

1. In this case a decree for sale of mortgaged property was passed some years ago and the execution therefor transferred to the Collector. He sold some of the mortgaged property and it realized more than Rs. 20,000. The rest he has ordered to be sold. In the meantime the Dekkhan Agriculturists' Relief Act has been applied to the District of Surat and the judgment-debtor asks for instalments under Sections 15 B and 20 of the Act.

2. The other question is of limitation.

3. As to the first question Section 20 does not apply to suits on mortgage-decrees, so the question really depends on the construction of Section 15 B of the Act. Before dealing with that section it is material to notice that the Act in the preamble says that 'it is expedient to relieve the agricultural classes of the Dekkhan from indebtedness.' Further it has been laid down by Ranade J. (Bhagawan v. Gannu I L R (1899) 23 Bom. 644 that the Dekkhan Agriculturists' Relief Act in several of its provisions is inconsistent with the Transfer of Property Act: ' Of course where, as in Sections 15 A, 15 B, 15 0, 15 D, 16, 20, 22, 70, the Dekkhan Agriculturists' Relief Act contains provisions directly inconsistent with those of the Transfer of Property Act, they are saved by Section 2(a) of Act IV of 1882.' Further it was held in Mahadaji v. Hari I L R (1883) 7 Bom. 322 that the powers of the Collector are limited by Section 321 of the Civil Procedure Code and that Officer cannot order the payment of a decree by instalments.

4. It is clear, therefore, that it is the Subordinate Judge who has the power to do so.

5. And it appears that the Collector sent the record to the Subordinate Judge for the necessary order to be passed.

6. Section 15B of the Dekkhan Agriculturists' Relief Act was introduced therein by Act XXII of 1882-the Transfer of Property Act was applied to Bombay on the 1st January 1893

7. Mr. Manubhai argued that the ' decree ' in Section 15B, must refer to a decree nisi and not to a decree absolute. But in my opinion the word ' decree' must be taken to mean decree nisi as well as decree absolute. No authority was cited for the proposition that these two classes of decree are different, and in fact they cannot be.

8. If this is not the true construction of the word decree, it seems an extraordinary thing that the Legislature did not point out the difference in the Section (His Lordship read the section).

9. Clause 3 evidently contemplates a power in the Court either in the decree nisi, or when it is made absolute, to direct that the amount payable by the mortgagor shall be discharged by continuing the mortgagee in possession.

10. Under this clause, therefore, a decree nisi for foreclosure can be converted into one for continuing the mortgagee in possession. Whether after a decree for foreclosure has actually operated and the transfer of ownership has been thereby effected, an order for payment by instalments can be made is a question which does not arise in this case.

11. The words of Section 15 B applicable to this case appear to me perfectly plain ' or in the course of any proceeding under a decree...for sale passed in any suit.' The present are proceedings under a decree for sale and therefore payment by instalments can be decreed.

12. As regards limitation the point does not arise, as the Dekkhan Agriculturists' Relief Act was not applied to Surat till the 15th August 1905, and the present application was made within one month after that date.

13. The result is that the decree of the Court below must be reversed and the case remanded for decision on the merits. Costs will abide the result.

Beaman, J.

14. I concur.

15. I am of opinion that Act XVII of 1879 was intended to afford the amplest protection to those classes within its scope. Possibly for that reason, Section 15B has been advisedly framed somewhat loosely, and with a want of technical precision. But reading the section as a whole, and in the light of what I believe to have been the policy underlying the Act throughout its history, I cannot seriously doubt that in all the cases mentioned in the section, the intention of the Legislature was to afford the debtor a locuspachitentice up to the very last moment before the property had actually and finally passed. It has been strenuously contended that the decrees for redemption foreclosure or sale mentioned in the section must mean and be limited to decrees nisi for redemption, foreclosure or sale; and therefore that the words, ' or in the course of any proceedings &c.; payable by the mortgagor under that decree' can only refer to proceedings, &c.;, between the decree nisi and the decree absolute, except in the case of a foreclosure decree, as to which there is authority, while the principle itself is clear and intelligible. This is still an open question and a question of difficulty. The argument in effect is that since when a decree for redemption or sale is made absolute, the mortgagor's right qua mortgagor is extinguished. The Court cannot direct that any money be paid by the mortgagor, under that decree, or commute such amount from a lump sum to instalments. For, there is no longer any amount payable under the decree by the mortgagor. Still he remains a judgment-debtor, though not a mortgagor and therefore execution can be taken out against him. That would in a sense be a proceeding under such a decree, but not a proceeding of the kind in which the Court could allow the debtor to virtually annul the decree and re-assume his character of mortgagor, by granting him instalments. It cannot be denied that there is some force in this reasoning. But while, as I have said, I think that the language of the section is advisedly loose and general, I entertain little, if any, doubt that the result thus arrived at, was not the result which the Legislature contemplated or desired. I think that there is, for example, a perceptible difference between the case of a decree absolute for sale, and for foreclosure. Theoretically the latter leaves nothing more to be done; there is nothing left to be paid by any one, no further step to be taken by the creditor or the Court. All is over. But that is not so when a decree for sale is made absolute. The amount for which the decree 1 was passed is still payable, and though strictly speaking, it may not be payable by the ' mortgagor,' it is payable out of what, but for the decree absolute, would be still his property. Nor is the Court bound to sell the whole of it. There is again no reason why the debtor himself could not come in at the Court-sale and buy his own property, 1 He has as much chance of doing so as any one else. And giving the words their ordinary and natural meaning it might fairly be said that what remains to be done under the decree absolute for sale, is still a proceeding under that decree, within the meaning of Section 15 B. Allowing the debtor still to take advantage of the Act, even at that late hour, appt are tome to be precisely accordant with the spirit and purpose of the whole piece of Legislation. I am confirmed in this opinion by the fact that cases of the kind are, I believe, of not infrequent occurrence, and that the point which has been most pressed against the debtor in this appeal has never been pressed before, or, if so, not pressed successfully enough to have engaged the attention of any Bench of this Court. To exemplify how common this kind of case is, I may add that we have another appeal pending before us, and that in the course of the argument we were referred to two recent decisions by the Honorable the Chief Justice and He on J. and the Honorable the Chief Justice and myself upon an exactly similar state of facts, where while this difficulty was once indicated, it was not gone into or made the ground of either decision.


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