Skip to content


Atmaram Nemchand Gujar Vs. Babagouda Bharma - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 717 of 1943
Judge
Reported in(1947)49BOMLR316
AppellantAtmaram Nemchand Gujar
RespondentBabagouda Bharma
DispositionAppeal dismissed
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 15d(n)-mortgage-suit for account-application by mortgagor for decree for redemption-claim for redemption not time-barred when suit for account filed-whether court can pass decree for redemption.;in a suit for an account of a mortgage filed within limitation, under the dekkhan agriculturists' relief act, 1879, the court is empowered to pass a decree for redemption, on an application made to it by the mortgagor under section 15d(3) of the act, before the passing of a decree in the suit, provided his claim for redemption was not barred by limitation when the suit was filed.;laluchand v. girjappa (1895) i.l.r. 20 bom. 469, referred to. - - 1. this appeal raises an interesting question of limitation for seeking redemption in a suit..........of the mortgagedeed, which fell on march 31, 1881. the plaintiff had, therefore, to file a suit for redemption within sixty years thereafter under article 148 of the first schedule to the indian limitation act. when the suit for accounts was filed by the plaintiff on july 27, 1940, he could have asked for redemption of the mortgage as that claim was then still in time, but as the application under section 15d, sub-section (3), of the dekkhan agriculturists' relief act, was made more than sixty years after the mortgage amount became payable, his claim for redemption was timebarred, and it is urged that the application should not have been granted. this contention did not find favour with the trial court, and the learned district judge agreed with that court and confirmed its.....
Judgment:

Lokur, J.

1. This appeal raises an interesting question of limitation for seeking redemption in a suit under Section 15D(3) of the Dekkhan Agriculturists' Relief Act, 1879. The plaintiff filed a suit under that section on July 27, 1940, for an account of a mortgage, dated April 14, 1880. On taking an account the trial Court found that Rs. 800 were due under the mortgage, and before the decree was signed, the plaintiff made an application under Section 15D, Sub-section (3), that he was going to pay the. requisite court-fee and that a decree for redemption of the mortgage should be passed in his favour. The trial Court accepted the court-fee payable for redemption of the mortgage and passed the usual decree for redemption under Section 15B of the Dekkhan Agriculturists' Relief Act, on June 30, 1941. It was contended that when the application under Section 15D, Sub-section (3), was made by the plaintiff, his claim for redemption was time-barred. According to the terms of the mortgage-deed the amount of the mortgage was payable on the first day of Chaitra and therefore the right to redeem the mortgage accrued on the first day of Chaitra after the execution of the mortgagedeed, which fell on March 31, 1881. The plaintiff had, therefore, to file a suit for redemption within sixty years thereafter under Article 148 of the first schedule to the Indian Limitation Act. When the suit for accounts was filed by the plaintiff on July 27, 1940, he could have asked for redemption of the mortgage as that claim was then still in time, but as the application under Section 15D, Sub-section (3), of the Dekkhan Agriculturists' Relief Act, was made more than sixty years after the mortgage amount became payable, his claim for redemption was timebarred, and it is urged that the application should not have been granted. This contention did not find favour with the trial Court, and the learned District Judge agreed with that Court and confirmed its decree. It is now urged in this Court that the learned District Judge was wrong in thinking that the application under Section 15D, Sub-section (3), of the Dekkhan Agriculturists' Relief Act, was for amending the plaint and the principles which govern the amendment of the plaint would apply to it. It is true that the application under Section 15D Sub-section (3), does not seek for amendment of the plaint itself, but that sub-section gives the Court power to pass a decree for redemption in a suit for an account. Under O. II, Rule 2, of the Civil Procedure Code, every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. So ordinarily a suit by a mortgagor for accounts only is not maintainable, and if he sues for accounts only, his subsequent claim for redemption would be barred. But Section 15A of the Dekkhan Agriculturists' Relief Act makes an exception, and as pointed out by Ranade J. in Laluchand v. Girjappa, I.L.R (1895) Bom. 469 Sub-section (3) of Section 15D confers upon the Court power to turn an account suit into a suit for redemption in its discretion, and instead of asking for a further relief by amending the plaint, the plaintiff can by a mere application ask for a decree for redemption in a suit for an account. It is significant that although a similar right is given to the mortgagee to apply to the Court to pass a decree for foreclosure or sale, instead of a decree merely declaring the amount remaining unpaid, a condition is imposed that the mortgagee should at that time have been 'entitled to sue for foreclosure or sale'. The word 'then' indicates that when he makes an application for that relief his right to sue for foreclosure or sale must be in time. No such condition is imposed upon the mortgagor's application for redemption. It is true that when the suit was filed by him his claim for redemption must be in time, and had he asked for redemption in the plaint itself, he would have had to pay the necessary court-fee, but in order to facilitate such a suit by an agriculturist he is allowed the option of merely asking for an account in the first instance, and then at any stage thereafter before the decree is passed, applying to the Court, on payment of the necessary court-fee to give him a decree for redemption. Under Section 149 of the Civil Procedure Code as soon as he pays the requisite court-fee with the permission of the Court the original plaint itself is to be deemed to have been duly stamped for the relief of redemption. If the claim for redemption was in time when the suit was filed, the Court is bound to pass a decree for redemption if in its discretion it thinks it fit to grant the application. The trial Court thought it fit in this case to grant the application. There is no reason to interfere with its order on the ground that the application was barred under Article 148 of the first schedule to the Indian Limitation Act. That article applies to institution of suits, and in the case of an application made under Section 15D, Sub-section (3), the Court is specially empowered to pass a decree for redemption in a suit brought for a different kind of relief.

2. No other point is urged and I dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //