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Kashinath Vinayak Bhave Vs. Rama Daji Kale - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in37Ind.Cas.255
AppellantKashinath Vinayak Bhave
RespondentRama Daji Kale
Excerpt:
.....whether required--civil procedure code (act v of 1908), order xxxiv, rule 5 (2). - - under the dekkhan agriculturists' relief act the mortgagor is favoured in these two respects, that he is enabled to make easy payments and that only a sufficient portion of his property is sold on the failure to pay any instalments. i see no difficulty in holding that that is the limit of the concessions which the legislature was making in his behalf, and in my view neither the principle of those concessions nor the words of the statute suggest that the intention was that, on the failure to pay each particular instalment, the mortgagee would not only have to obtain a definite order under sub-section 2 of section 15 (b), but would also have to follow it up at some later period by making a fresh..........sale upon a mortgage, in default of payment of instalments ordered under section 15(b)(1) of the dekkhan agriculturists' relief act, must apply under order xxxiv, rule 5 of the civil procedure code, to make the decree final before he can apply for sale of the necessary portion of the property under section 15(b)(2) of the dekkhan agriculturists' relief act.3. in my opinion the answer should be in the negative.4. it is true that by section 74 of the dekkhan agriculturists' relief act it is provided that, except in so far as the civil procedure code is inconsistent with that act, the code shall apply in all suits and proceedings before subordinate judges under that act. but, as it seems tome, the kinds of procedure laid down by the civil procedure code and the dekkhan agriculturists'.....
Judgment:

1. We are obliged to the learned Pleaders who, as amici curiae, have assisted us with their arguments in this case.

2. This is a reference under Order XLVI, Rule 1, from the learned District Judge of Ahmednagar, and the question, which is propounded to this Court, is in the learned Judge's words this: whether a holder of a decree for sale upon a mortgage, in default of payment of instalments ordered under Section 15(b)(1) of the Dekkhan Agriculturists' Relief Act, must apply under Order XXXIV, Rule 5 of the Civil Procedure Code, to make the decree final before he can apply for sale of the necessary portion of the property under Section 15(b)(2) of the Dekkhan Agriculturists' Relief Act.

3. In my opinion the answer should be in the negative.

4. It is true that by Section 74 of the Dekkhan Agriculturists' Relief Act it is provided that, except in so far as the Civil Procedure Code is inconsistent with that Act, the Code shall apply in all suits and proceedings before Subordinate Judges under that Act. But, as it seems tome, the kinds of procedure laid down by the Civil Procedure Code and the Dekkhan Agriculturists' Relief Act respectively in the matter of sales in mortgage suits are inconsistent one with the other. By rules 4 and 5 of Order XXXIV of the Code a plaintiff-mortgagee must obtain both a preliminary decree for sale and upon his separate application a final decree for sale before the mortgaged property or sufficient part thereof can be sold. But Section 15 (6), Sub-sections 1 and 2 of the Dekkhan Agriculturists' Relief Act, which provide for the sale of mortgaged property under that Act, contain, as I read them, materially different provisions. Sub-Section 1 of the Section empowers the Court, in its discretion in making a decree for sale, to direct that the amount payable by the mortgagor under the decree shall be payable in instalments, and Sub-Section 2, which is the important provision, is in these words:

If a sum payable under any such direction is not paid when due, the Court shall, except for reasons to be recorded by it in writing...order the sale of such portion only of the property as it may think necessary for the realization of that sum.

5. It is necessary to contend on behalf of the judgment debtor, and accordingly it has been contended, that the words which I have read mean no more than that the Court shall make a decree directing that in default of payment of the instalment the mortgaged property or a sufficient part thereof shall be sold. But the words which I have cited do not say that they say a great deal more than that, and, as I think, must be taken to mean what they say, that is, that the Court shall make an out-and-out order for sale; nor is there anything in the Dekkhan Agriculturists' Relief Act to suggest that anything more than this order is required for the purpose of bringing the property to actual sale.

6. Although, as Mr. Desai has urged, the general scheme of the Dekkhan Agriculturists' Relief Act is to assist or favour the indebted defendant, I can see nothing repugnant in the construction which I have put upon the words of Section 15 (b). For, the scheme of this Section, making special allowance for instalments and requiring that only a portion of the mortgaged property shall be sold, seems to me to differ entirely from the general scheme of Order XXXIV of the Civil Procedure Code. Under the Dekkhan Agriculturists' Relief Act the mortgagor is favoured in these two respects, that he is enabled to make easy payments and that only a sufficient portion of his property is sold on the failure to pay any instalments. I see no difficulty in holding that that is the limit of the concessions which the Legislature was making in his behalf, and in my view neither the principle of those concessions nor the words of the Statute suggest that the intention was that, on the failure to pay each particular instalment, the mortgagee would not only have to obtain a definite order under Sub-Section 2 of Section 15 (b), but would also have to follow it up at some later period by making a fresh application in each case and obtaining from the Court a fresh order. I am of opinion that the order made by the Court under Sub-Section 2 is the order contemplated by the Legislature as effecting without more the sale of the requisite portion of the property.

Shah, J.

7. I agree.


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