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Supdu Dhodu Gujar Vs. Madhavrao Jivram Gujar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 870 of 1918
Judge
Reported in(1920)22BOMLR780; 57Ind.Cas.534
AppellantSupdu Dhodu Gujar
RespondentMadhavrao Jivram Gujar
DispositionAppeal allowed
Excerpt:
.....sale-deed was in reality a deed of mortgage and to redeem the mortgaged property, terminated in a consent decree which provided that if the plaintiff paid a certain amount to the defendant within a month from its date the defendant should deliver possession of a field after harvesting the crop in february 1918, and that if the payment was not made in time, the defendant became its owner. the payment was not made within due date, which was, 4th october 1917; but it was made on the 26th november 1917. the defendant contended that as the payment was not made within time he had become owner of the field;-;overruling the contention, that it was open to the court to relieve against the default of the plaintiff on certain terms, for although the plaintiff might have paid the amount decreed..........arrived at an amicable settlement and in accordance with a compromise application filed by them a consent decree was recorded. the terms are set out at p. 1 of the print. it will be seen that with regard to one survey number the plaintiff had to pay rs, 1100 to the defendant within one month from the date of the consent decree. if the above amount was not paid, the defendant was entitled to retain possession of the suit number as owner. in any event he was entitled to remain in possession until the february following for the purpose of removing the crop he had sown. the plaintiff made default and the defendant claimed that he was entitled to retain the property under the terms of the decree. the plaintiff paid in rs. 1500 for both the properties on the 26th november 1917, and then.....
Judgment:

Norman Macleod, Kt., C.J.

1. In this case the plaintiff sued for a declaration that what appeared to be a sale deed of the plaint property was merely a mortgage deed, and that he was entitled to redeem the property. The parties arrived at an amicable settlement and in accordance with a compromise application filed by them a consent decree was recorded. The terms are set out at p. 1 of the print. It will be seen that with regard to one Survey Number the plaintiff had to pay Rs, 1100 to the defendant within one month from the date of the consent decree. If the above amount was not paid, the defendant was entitled to retain possession of the suit number as owner. In any event he was entitled to remain in possession until the February following for the purpose of removing the crop he had sown. The plaintiff made default and the defendant claimed that he was entitled to retain the property under the terms of the decree. The plaintiff paid in Rs. 1500 for both the properties on the 26th November 1917, and then presented an application for a declaration that time stated in the compromise application was not of. the essence of the contract. The trial Court allowed the-application. An appeal against that order was successful, the learned Assistant Judge holding that the parties had come to a solemn agreement upon which they based their rights and liabilities. It was held in Lachiram v. Jana Yesu : AIR1914Bom127 where there had been a consent decree which provided for the payment of a certain sum found due by fixed instalments, and it was provided that on failure to pay two instalments the plaintiff was entitled to recover possession of certain lands, the plaintiff was entitled to take possession of the property after there had been a default and the Court had no power to vary the consent decree. The Full Bench case of Krishnabai v. Hari Govind : (1906)8BOMLR813 , F.B. was referred to in the judgment, and it was held that that case was inapplicable where the relation of landlord and tenant was not created by the decree. In Krishnabai v. Hari Govind there was a consent decree which established the relation between the parties of landlord and tenant. The plaintiff then filed a suit claiming that by his action the defendant had forfeited Ids rights created by that consent decree, and the Full Bench considered that the consent decree constituted an agreement between the parties, and was to be dealt with as of there had been an original agreement between the parties out of Court, and, as under such an agreement made out of Court, the Court would relieve against forfeiture, so the Court would Relieve against forfeiture under the contract created by the iconsent decree. Therefore in each case the terms of the consent decree must be considered. The Court cannot lay down a general principle that in no case can the terms of a consent decree be varied. Now the consent decree in this case amounted to a decree for redemption. The plaintiff-mortgagor had to pay into Court a certain sum within a month, and if he did not do so, certain consequences arose. In every decree for redemption where a period for payment is described, it will follow that if default is made the mortgagee has certain rights. He can apply for foreclosure or for sale. But until he has foreclosed or sold the property, the Court of Equity will always be disposed to grant relief to the defaulting mortgagor. In this case, although the plaintiff might have paid the amount decreed within the month allowed, he would not have got possession until the February following, and that evidently was the important date considered by the Court and by the parties when they arranged the compromise. It is true that under the consent decree the defendant for a certain period would have the advantage of his money and also would have the advantage of possession. But we think it would be open to the Court to relieve against a default of the plaintiff on proper terms. As a matter of fact the plaintiff paid in the money by the 26th November, still three months before he would get possession under the consent decree. We think, therefore, that he is entitled to recover possession of the property on paying interest for a month from the date of the decree until the 26th of November 1917 at six per cent. The appeal, there fore, will be allowed with costs in this and the lower appellate Court.

Hkaton, J.

2. When once it is conceded that we have here though it takes the form of a decree, what is substantially a contract, then I think the principle, on which the decision in Kritiknabai v. Hari Govind : (1906)8BOMLR813 was founded, applies. Then whether we apply the rule as to time being of the essence of the contract, or the general principle that where you have relations of mortgagor and mortgagee, although the time may be fixed for the payment of the mortgage debt by the contract, the mortgagor would still be entitled to pay the mortgage debt until the 5 relation of mortgagor and mortgagee had ceased to exist, the result 'is the same. The contract we are concerned with is of course peculiar. It is in some ways like an agreement to purchase property on the part of one person and an agreement to sell on the part of another. It is in some ways like a mortgage where the provision is that the mortgage debt shall be paid on a particular date, and that on a later date the mortgaged property should be restored to the mortgagor. But although it is peculiar in its terms, it seems to me the contract is one to which the principles governing contracts for the sale and purchase of immoveaable property, or contracts of mortgage, might well be applied, and ought to be applied. If they are applied, then it follows, as it seems to me with no room for hesitation whatever, that although a date was fixed for the payment, the payment that was made in this case will be allowed to operate as a proper payment under the decree, though it was made some two months later than the time fixed. I agree, therefore, that the appeal should be allowed with costs in this Court and the lower appellate Court.


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