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Vasantrao Govindrao Prabhakar Vs. Nanabhai Sadanand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 21 of 1925 and Suit No. 2682 of 1921
Judge
Reported in(1926)28BOMLR347; 94Ind.Cas.96
AppellantVasantrao Govindrao Prabhakar
RespondentNanabhai Sadanand
DispositionAppeal dismissed
Excerpt:
mortgage-foreclosure-decree nisi before transfer of property act (iv of 1885) mortgagee let into possession before due date of redemption-mortgagor's right to issue fresh certificate and demand further day of payment-long possession-mortgagor's right to redeem extinguished.;a mortgagee obtained in 1875 a decree nisi for foreclosing two mortgages. he went into possession of one of the mortgaged properties at girgaon before the expiry of the redemption period under an arrangement with the mortgagor. with regard to the other property at mahim, the mortgagee applied to execute the decree, and eventually filed a suit to recover its possession, but the mortgagor having given up possession, the suit was dismissed. in 1921, the mortgagor sued to redeem both properties:-;(1) as regards the.....norman macleod, kt., c.j.1. the plaintiffs filed this suit for the redemption of two properties, hereinafter called the girgaon property and the mahim property respectively, after taking an account of the two mortgages mentioned in the plaint. the following pedigree is necessary for the purposes of this judgment, madhoba hsrischandra | atmaram | -------------------------------------------- | | | ganpatrao anandrao shamrao =manekbai | ------------------------------------------------- | | | | wamanrao ramrao vinayakrao madhavrao =bablibai | sushilabai2. the original plaintiffs nos. 1 to 3 were wamanrao, vinayakrao and madhavrao, while plaintiffs nos. 4 and 5 were the executors of maneckbai widow of gunpatrao.3. in 1869 madhoba negotiated with one shrikrishna naranj for a loan of rs. 82,000.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiffs filed this suit for the redemption of two properties, hereinafter called the Girgaon property and the Mahim property respectively, after taking an account of the two mortgages mentioned in the plaint. The following pedigree is necessary for the purposes of this judgment,

Madhoba Hsrischandra

|

Atmaram

|

--------------------------------------------

| | |

Ganpatrao Anandrao Shamrao

=Manekbai |

-------------------------------------------------

| | | |

Wamanrao Ramrao Vinayakrao Madhavrao

=Bablibai

|

Sushilabai

2. The original plaintiffs Nos. 1 to 3 were Wamanrao, Vinayakrao and Madhavrao, while plaintiffs Nos. 4 and 5 were the executors of Maneckbai widow of Gunpatrao.

3. In 1869 Madhoba negotiated with one Shrikrishna Naranj for a loan of Rs. 82,000 to be secured on the Girgaon property. An agreement was arrived at whereby Shrikrishna Naranji was to advance Rs. 82000 on a deposit of the title deeds of the Girgaon property and Madhoba was to purchase the Mahim property from Shrikrishna for Rs. 50,000. Accordingly the title deeds of the Girgaon property were deposited with Shrikrishna who advanced Rs. 82,000 to Madhoba. Madhoba died on September 19, 1869, leaving a will dated April 16, 1862, and a codicil thereto dated September 18, 1869.

4. Probate of the will and codicil was granted to Atmaram Madhoba as the executor named in will on January 20, 1870. On March 25, 1870, Atmaram obtained a conveyance of the Mahim property from Shrikrishna, and on the same day Atmaram executed two mortgages one of the Girgaon property and the other of the Girgaon and Mahim properties to secure the sums of Rs. 82000 and Rs. 50,000 respectively.

5. On March 4, 1875, Shrikrishna assigned the said two mortgages and all his rights thereunder to his son Sadanand.

6. Sadanand filed a suit No. 259 of 1875, against Atmaram for the realisation of the amounts due on these mortgages, and obtained a decree nisi on* July 15,1875, by which it was directed that the defendant as executor should pay to the plaintiff Rs. 2,39,538-5-8 for debt and interest on the two mortgages with costs and further simple interest on the principal sum of Rs. 2,32,672 at 13 per cent per annum from the date of the decree till payment, and it was ordered that on the defendant paying the said principal, interest and costs, within six months after the date of the decree, the plaintiff should reconvey the. premises comprised in the mortgage deeds to the defendant free of all incumbrances, but on the defendant failing to pay what should be due for principal, interest and costs by the said time the defendant should from thenceforth stand absolutely debarred and foreclosed of and from the equity of redemption of the said mortgaged premises. In or about the month of November 1875, before the six months prescribed in the decree expired, Atmaram put Sadanand in possession of the Girgaon property. The arrangement under which possession was given is said to have been recorded in a letter of November 29, 1875, written by Atmaram to Sadanand, which is Exhibit F to the plaint, though it does not appear to have been proved and put in as an exhibit in the suit, It is alleged in the plaint para 9 that the Municipality of Bombay was pressing Atmaram to execute some repairs to certain chawls on the Girgaon property and was threatening in default to pull them down. As Atmaram could not comply with the requisition of the Municipality he agreed that Sadanand should enter into possession, and rebuild such of the chawls as were required to be rebuilt, debiting Atmaram with the costs thereof and crediting him with the rents received.

7. The first defendant Nanabhai Sadanand, son of the mortgagee, in para 4 of his written statement, denied any knowledge of this arrangement, but he admitted that Sadanand was put into possession of the Girgaon property in December 1875 and that letters were addressed to the tenants) to pay rent to Sadanand. He further set up an oral arrangement that Sadanand was to repair and rebuild while Atmaram should have a further six months within which to redeem. The plaintiff further alleges that in or about the month of July 1877 Atmaram put Sadanand in possession of the Mahim property as mortgagee in possession but in spite of such possession being given Sadanand filed a suit No, 869 of 1877 for possession which was dismissed with costs. Atmaram died on July 6, 1893, and Sadanand in or about the year 1910, leaving his son the first 'defendant as executor of his will.

8. The plaintiffs contended that Sadauand not having obtained a decree absolute for foreclosure or for sale in suit No. 259 of 1875 and having entered into possession of the said property under the arrangement referred to, the relation of mortgagor and mortgagee between Atmaram and Sadanand continued to subsist and still subsisted between the plaintiffs as executors of the will of Manekbai and as administrators de bonis non of the estate of Madhoba and the defendant as executor of Sadanand. Further that execution of the decree nisi had long been time-barred. The plaintiff alleged that Manekbai had an interest in the suit properties but they did not set out in the plaint how that interest was acquired.

9. However it appears that on June 6, 1878, Anandrao and Ganpatrao, sons of Atmaram, were adjudicated insolvent. When Atmaram died in 1893 the Official Assignee put up for sale the interests of Anandrao and Ganpatrao in the Girgaon property and other properties and sold them to one Major Kirtikar. He died on May 9, 1917, leaving a will and a codicil. By the co. dicil he devised the Girgaon property to Manekbai, the widow of Ganpatrao. Her executors, therefore, had no claim upon the Mahim property.

10. By an order of August 1, 1924, plaintiffs Nos. 1 to 3 were struck out and added as defendants Nos. 2, 3 and 4. For some reason or other this order was cancelled on August 2, but the amendment was reinstated by an order of September 24. All these orders were made after the suit was first called on for hearing, and it is curious to note that the plaint was redeclared on Augusts, 1924, and October 17, 1924, by one Motiram Kirti-kar, constituted attorney for defendants Nos. 2, 3 and 4.

11. Para 21 of the plaint at page 5 of the printed book should not have been in black ink, as it refers to the order made on September 24.

12. Then the concise statement which appears at page 9 could not possibly have been the original concise statement, as it in no way corresponds with the plaint as drawn. In para 13 of the plaint the plaintiff said they were applying for letters of administration with the will and codicil of Madhoba annexed to the estate of Madhoba. These letters were not granted until October 31, 1924, limited to the two properties mentioned in the suit. Now the concise statement recites that the plaintiffs and defendants Nos. 2,3 and 4 pray that it may be declared that the plaintiff and defendants Nos. 2, 3 and 4 as administratix and administrators of the estate of Madhoba Harichandra were entitled to redeem the properties mentioned in the plaint, while the decree which was eventually passed dismissing the suit recites that the plaintiff's pray that it may be declared that they, as executors of the will of Manekbai and as administrators debonus non jointly with defendants Nos. 2, 3 and 4 of the estate of Madhoba, should be entitled to redeem the suit properties. Then from the record at page 54 it would appear that the hearing commenced on November 10, 1924, although the decree recites that it was called on for hearing on several days in July, August and October,

13. It is necessary to point out all these defects in the record, since in a case of this description where the parties appear to have more than once changed their positions and their characters, unless the record is properly kept, confusion is likely to arise.

14. The first defendant filed a written statement on January 7, 1922, which does not appear to have been amended since. He contended that the decree in the suit of 1875 was not a decree nisi but a final decree, and that in the events which occurred Sadanand became entitled to 'possession of the Girgaon property at the latest on July 15, 1876, and of the Mahim property on January 15, 1876,

15. He denied that Sadanand went into possession of the Mahim property as mortgagee, on the contrary the Judge in Suit No. 689 of 1877 held that Sadanand had obtained possession of the Mahim property before suit and on that ground dismissed the suit. He claimed that even if the decree in suit 259 of 1875 was not a final decree, any claim to redeem the properties was res judicata by virtue of the decree.

16. Further, the Mahim property had been handed over to Sadanand in execution of the decree, and had been conveyed by Sadanand in 1882 to one Purshottam Srikrishna, Large sums had been spent on the Girgaon property and in any event the plaintiff' could not redeem without an account being taken of such sums. The rule of damdupat had no application.

16. Defendants Nos, 2, 3 and 4 were allowed to put in a written statement on November 10, 1924, supporting the plaintiffs,

18. The Judge found on the issues which were raised on the pleadings. (1) That the plaintiff's, as executors of Manekbai, were only interested in the Girgaon property. They could not sue to redeem only one of the two (the Judge appears to have forgotten there were two mortgages) properties under the mortgage. They had no interest in the other. (2) That Dattaram Yaidyaram, heir of Purshotam Srikrishna, was a necessary party, (3) That the decree in suit No. 259 of 1875 barred the defendant therein from all equity of redemption in default of payments as therein directed. (4) That Atmaram had no interest in the Girgaon property as from January 15, or July 15, 1876, (5) That the plaintiffs' claim was barred by adverse posses-, sion, and dismissed the suit.

19. The plaintiff's, executors of the will of Manekbai, have appealed.

20. The difficulties in the case have mainly arisen from the fact that suit No. 259 of 1875 was filed on two separate mortgages, that the decree was passed as if there was one mortgage, and that thereafter the properties in each mortgage were dealt with in different ways. It is admitted that in December 1875, before the redemption period had expired, Sadanand obtained possession of the Girgaon property by arrangement with the mortgagor. Whatever that arrangement may have been, Sadanand continued in possession thereafter as owner. As to the Mahim property Sadanand, in 1877, took out a summons for executing the decree in suit No. 259 of 1875, and on July 23, 1877, a Judge's order was made on the summons that the decree should be executed against Atmaram by ordering delivery to be given to Sadanand. But when the Judge was asked to sign a further order for the purpose of carrying out the previous order, that a warrant should issue to the Sheriff, he declined to sign it and told Sadanand to file a suit for possession. Sadanand then filed the suit already referred to, but as Atmaram in his written statement stated that he was served with a rule or order to show cause why the decree in suit No. 259 of 1875 should not be executed and did not appear to show cause against the rule but thereupon gave up possession to the plaintiff, the suit was dismissed. Sadanand transferred the property by deed of gift in 1882 to Purshottam. The position then is somewhat unorthodox. No objection appears to have been taken to the form of the suit No. 259 of 1875 which apparently treated the two mortgages as one and sought for one account of what was due on both the mortgages. With regard to one property the decree was executed as if it was a final decree, with regard to the other the mortgagee entered into possession by arrangement with the mortgagor before the time prescribed for paying off the mortgage had expired. Even assuming that the mortgage on the Mahim property had been foreclosed absolutely, the mortgage on the Girgaon property continued to be in existence, It would have been otherwise if Sadanand had entered into possession after the six months fixed in the decree had passed. The Judge was of opinion that the decree was a final one, but I think the most that can be said on that question is, that at the time the decree was passed, it was probably the practice to foreclose by proceedings in execution, instead of obtaining an order absolute. Undoubtedly, the decree was in the form of a decree nisi according to the precedent appearing in Seton which is reproduced in form 8 in Appendix P to the first Schedule of the Civil Procedure Code of 1908. I should prefer form No. 27 annexed to the High Court Rules appearing at page 235 in which it is directed that in default of the defendants paying principal, interest and costs by the time prescribed, the plaintiff will be entitled to a decree absolute for sale.

21. The English practice with regard to foreclosure absolute is set out in Lord Halsbury's Laws of England, Vol. XXI, para 520 at page 293, as follows:-

Upon non-payment of the amount certified be be due at the time and place prescribed, the mortgagee is antitled to an order for foreclosure absolute as against the person or persona in default. The order is obtained upon motion or summons, and there must be an affidavit made by the mortgagee, of attendance at the prescribed time and place and non-payment of the money; and also an affidavit by the mortgagee...of non-payment since the appointed time

22. And note (6) on the same page says :-

If the order is made on motion, the matter is not mentioned to the Court unless there has been some irregularity preventing the motion from being treated as of course; counsel hands his brief duly indorsed to the Registrar. But usually it is made on summons in Chambers...whether the proceedings are by writ or summons.

23. It might be advisable to consider whether this practice should not be prescribed for this Court by rule.

24. But though it would appear that the form used by this Court in those days for decrees in mortgage suits was the same as was used according to the English practice for decrees nisi, there was no regular practice prescribed for the course to be followed by the mortgagee when default occurred in payment of principal, interest and costs, within the time allowed. It really did not make any difference whether the mortgagee executed his decree, and obtained possession of the mortgaged property, or applied for a final decree, except that an application for execution might be subject to the law of limitation. The question remains, what is the legal position of the parties if the decree is not executed and no order absolute is asked for.

25. Now ordinarily speaking, if after a decree nisi for foreclosure has been passed and the mortgagee enters before the period for payment of the principal, interest, and costs, has expired, the mortgagee could not foreclose without a further account being taken, as he would be liable to account for the rents received. Admittedly, rents were received from the Girgaon property, but the question would arise by what procedure were these accounts to be taken if the mortgagor demanded them.

26. Presumably, this Court, before the Transfer of Property Act came into fores, would be guided by the English practice. Lord Halsbury, in para 532 of Vol. XXI, says :--

The time for redemption will be enlarged if the mortgagee is in possession and receives rents between the date of the master's certificate and the day appointed for payment. Such reoaipt opens the account, and a fresh certificate must be made and a further day appointed; but after default on the day appointed for payment, the mortgagee receives the rents on his own account and the time is not thereby enlarged.

27. The fact then that Sadanand entered into possession before the time appointed for payment rendered necessary the issue of a fresh certificate and the appointment of a further day for payment. The next question is, whether the mortgagor's right to bring a redemption suit is barred by the mortgagee obtaining an order nisi for foreclosure. In Hill v. Rowlands [1897] 2 Ch. 361 an order for foreclosure was made in the common form and a certificate had also been made in the common form appointing the last day of six calender months from the date of the certificate as the time for redemption, on payment of the principal money with interest up to that day and costs. The mortgagor claimed to be allowed to redeem at an earlier date than the date so fixed on payment of the amount found due with interest up to the date of payment only. The application was refused by Romer J. and on appeal Lindley L. J. said: ' The rights of the parties are settled by the judgment, and the mortgagor cannot redeem before the time fixed by the certificate on payment of a less sum than is named in it.

28. It would thus appear that the mortgagors' rights are confined to applying in the foreclosure action for an enlargement of the time for payment.

29. The general principles by which the Court will be guided in entertaining such an application are set out in para 528 of Lord Halsbury's Law of England, Vol. XXI:.Enlargement of timers not a matter of course. There must be some reason for it, such as that the security is ample, and that the mortgagor has a reasonable probability of obtaining the monoy to pay the mortgage debt;...The matters to be taken into consideration include the nature of the estate, whether in rerer-sion or in possession, whether the mortgaged propsrty shows a sufficieat margin to protect the mortgagee against loss; and whether the mortgagor's reasonable, expectations (of raising the money to pay off the mortgage) have been disappointed.

30. An application to enlarge the time and take further accounts forty-five years after the mortgagee had been put in possession after an order for foreclosure nisi had been made, even though possession was given before the day appointed for payment had arrived, could hardly have been within the contemplation of the learned author. If after a preliminary decree for foreclosure has been passed under the Civil Procedure Code of 1908 the mortgagee enters into possession before the day appointed for payment has arrived, the mortgagor would certainly have a right to demand a fresh account and the appointment of a further day for payment, but if he allowed many years to pass before making his application the Court would probably consider how far by his conduct he could be said to have foreclosed himself.

31. But in this case there is a decree which at the time it was passed, whatever its form might be, was considered by the Court oapable of execution. When the mortgagor put Sada-nand into possession of the Girgaon property in December 1875, he had not the means to comply with the Municipality's requisitions for rebuilding or repairing some of the chawls thereon and he would not have had the slightest expectation of redeeming the mortgaged properties either on the day appointed for payment or six months later. The rents received by the mortgagee between the date of taking possession and the date fixed for repayment could not have amounted to any great sum. I think it must be considered that Atmaram by taking no further steps to ask for a further account, and for extension of the time for payment, acquiesced in the mortgagee holding the property as his own and induced him to believe that it was no longer necessary either to execute the decree he had obtained or to obtain an order absolute for foreclosure.

32. Even if it were held that the suit could be reconstituted as an application in the mortgage suit to enlarge the time for redemption, and an order was made to take accounts from December 1875, it is obvious that the amount due to the mortgagees according to the terms of the mortgage would be many lakha, as the rule of damdupat does not apply to mortgagees in possession, and any possibility of the plaintiffs being able to pay what would be found duemay be discarded.

33. The appeal must be dismissed with costs.

Goyajee, J.

1. The plaintiffs claimed that they and the second, third and fourth defendants are entitled to redeem the two immoveable properties mentioned in the plaint, and which it will be convenient to describe as the Girgaon property and the Mahim property. Madhoba Harischandrnji was the original owner of the Girgaon property. In or about the year 1869 Shrikrishna Naranji agreed to advance the sum of Rs. 82,000 on the security of that property, Madhoba agreeing to buy for the sum of Rs, 50,000 the Mahim property which was then owned by Shrikrishna. Accordingly, Shrikrishna advanced the sum of Rs. 82,000 and Madhoba deposited with him the title-deeds of the Girgaon property. In 1869 Madhoba died having by his last will and codicil appointed his son Atmaram his executor. In January 1870, probate of the will and codicil was granted to Atmaram. On March 26, 1870, Atmaram, as executor of Madhoba, obtained a conveyance of the Mahim property from Shrikrishna. On the same day he executed two mortgages, Exs. A and B, in favour of Shrikrishna. Ex. A was for Rs. 82,000 and comprised the Girgaon property, Ex. B was for Rs. 50,000 and comprised both the Mahim property and the Girgaon property. On March 4, 1875, Shrikrishna assigned both the mortgages and his rights thereunder to his son Sadanand.

2. Sadanand filed Suit No. 259 of 1875 in the High Court against Atmaram for realization of the money due on both the mortgages. On July 15, 1875, a decree was passed in these terms:-

The said defendant...do pay to the plaintiff the sum of Rs. 2,39,538-5-8 for debt and interest (due on the said two Indentures of mortgage ..) and the costs of this suit...and farther simple interest) on the principal sum of Rs. 1,32,672 at the rate of 13 per cent, per annum from the date hereof until payment and this Court doth further order that upon the said defendant paying to the plaintiff the said principal interest and costs within six calender months after the date of this decree the plaintiff do reconvey the premises comprised in the said mortgage-deeds...but on the defendant failing to pay to the plaintiff what shall be due for principal interest and costs as aforesaid by the time aforesaid the defendant doth from thenceforth stand absolutely debarred and foreclosed of and from equity of redemption of in and to the said mortgaged premises.

3. The parties agree that in or about December 1875 Atmaram gave possession of the Girgaon property to Sadanand; but they differ as to the circumstances under which the transfer of possession took place. The plaintiff's allegations are set out in paragraph 9 of the plaint; but it may be noted that the letter referred to therein is not proved. As regards the Mahim property, the plaint (paragraph 11) alleges that in the month of July 1877 Atmaram put Sadanand in possession of it as mortgagee. The plaintiffs contend that Sadanand not having obtained a decree absolute for foreclosure in suit No. 259 of 1875, and having entered into possession of the mortgaged properties under the arrangements above referred to, the relation of mortgagor and mortgagee still subsists between them and the second, third and fourth defendants on the one hand and the first defendant on the other.

4. The first defendant resisted the claim on the grounds, (1) that the decree in Suit No. 259 of 1875 was a final decree; (2) that the claim to redeem the properties was res-judicata by reason of that decree; (3) that Atmaram had delivered over the Mahim property to Sadanand in execution of the said decree, and it was in the possession of Dattaram Vidyaram as the heir of Purshottam to whom Sadanand had conveyed it by an indenture dated June 26, 1882; (4) that Sadanand and after him the defendant claim to be in possession of the Girgaon property as owner thereof, and their possession had been adverse and the suit as to that property was barred by the law of limitation; and (5) that Sadanand had expended large sums in erecting substantial buildings on the Girgaon property and those entitled to the equity of redemption, had there been any, were aware that such buildings were being erected and stood by and took no steps to assert any claim to the said property and allowed the said buildings to be erected well knowing that Sadanand claimed to be its owner.

5. The learned trial Judge dismissed the suit, holding : (1) that the decree passed in 1875 was a final decree, it was not superseded by the agreement set up in the plaint, and the mortgagor had no interest left in the suit properties; (2) that the alienee of the Mahim property was a necessary party to the suit; (3) that the claim to redemption was barred by res judicata; and (4) that the plaintiffs had lost their interests, if any, in the said properties by the adverse possession of the first defendant.

6. The first defendant has brought this appeal.

7. The decree was passed in the year 1875, long before the Transfer of Property Act was enacted The trial Judge rightly points out, that before the year 1880 it was not the practice of this Court to require the mortgagee, upon non-payment of the money due at the time prescribed, to obtain an order for foreclosure absolute as against the person or persona in default. the mortgagee was permitted to foreclose by proceedings in execution of the decree instead of obtaining an order absolute,

8. In this case, on July 12, 1877, Sadanand took out a summons that the decree made in Suit No. 259 of 1875 be executed against Atmaram by ordering the delivery of the Mahim property to Sadanand, and an order to that effect was passed on July 23, (Ex. 1). The Chamber Judge, however, refused to sign a warrant for possession, apparently on the ground that the decree contained no order for possession, Sadanand then brought suit No. 699 of 1877 against Atmaram claiming that he had become absolutely entitled to the properties, and asking for possession of the same (Ex. E). In his written statement, Atmaram contended that he had given possession of the Girgaon property to Sadanand in pursuance of certain arrangements between the parties, and as regards the Mahim property he stated as follows :-

8. The defendant continued in posseasion of the said Mahim property and no steps wore taken and no notice given by the plaintiff to the defendant of his intention to get possession thereof until July 12, 1877, when a rule or order signed by a Judge of this Hon'ble Court was served by the plaintiff on the defendant calling upon the defendant to show cause on or before July 23, then instant, why the decree in Suit No. 259 of 1875 aforesaid should not be executed against him by ordering the delivery to the plaintiff or his agent of the said Mahim property...The defendant did not appear to show cause against the said rule of order but thereupon gave up possession to the plaintiff of the Mahim property who thereupon took possession thereof and has been and atill is in possession thereof and of the rents and profits accruing thereat.

9. It is clear, then, that as regards the Mahim property the decree passed in 1875 was executed by the mortgagee applying for poaaession in accordance with the practice then obtaining in this Court. On August 6, 1882, Sadanand conveyed that property to Purshottam Shrikrishnaji (Ex. 4). And it is now in the possession of Purshottam's grandson Dattaram who was examined as a witness in the case but is not joined as a party to these proceedings.

10. As regards the Girgaon property, Sadanand obtained possession of it by a private arrangement with Atmaram. It is difficult to ascertain the true nature of that arrangement. The rival contentions are set out, respectively, in paragraph 9 of the plaint and paragraph 5 of the first defendant's written statement. The evidence bearing on the question is meagre and inconclusive. But on such evidence as there is in the case, it would seem that Sadanand entered into possession for the purpose of rebuilding and repairing some of the chawls; probably also, the time for payment prescribed in the decree was extended by six months. But it is clear that thereafter Atmaram took no steps to ask for further accounts, neither he nor those claiming under or through him ever applied to the Court for enlargement of the time; and as the evidence of Nanabhai Sadanand shows, Sadanand held the property as his own and erected costly buildings on it to the knowledge of Atmaram. In the year 1884 Crustnarao Sacaram and another, who were the grandsons of Madhoba Harischandraji, brought Suit No. 428 against Atmaram Madhoba in the High Court for administration of the estate of the said Madhoba : the properties specified in their plaint included the Girgaon property (Ex. 2). In his written statement, Atmaram stated, inter alia, as follows:-

'This defendant says that the debts due by the testator [i. e, Madhoba Hari-schandra] were considerably in excess of the property left by the testator and that almost all the immoveable properties were encumbered by the Testator and could not be and were not redeemed but on the contrary they were sold or taken possesion of by the mortgagees in liquidation of their respective olaims under decrees of this Hon'ble Court excepting only two lands at Worlee and Batty Fields and garden at Salsette' (Ex. 2).

11. On the 5th of March 1885, Atmaram made an affidavit in which he stated as follows :-

In the month of June 1869 the Testator mortgaged the court with ranges or Chawls in Girgaum for Rs. 8200...with Shrikrishna Narayanjee and the said Shrikrishna Narayanjee took possession of the said court with ranges or chawls in or abaut fclie month of December 1875, under a deoree of this Hon'ble Court in suit No. 259 of 1875 for foreclosure' (Ex. 9).

12. The effect of the evidence adduced in this case is this: the decree of 1875 was capable of enforcement in accordance with the practice then obtaining in this Court; it was enforced as regards possession of the Mahim property; as regards the Girgaon property, Atmaram acquiesced in the position that Sadanand was entitled to hold the property as his own and it was no longer necessary for him to execute the decree. In my opinion, the mortgagee has been holding both the properties as absolute owner for the last forty five years, and this suit must therefore fail.

13. Even if the decree passed in Suit No. 259 of 1875 were regarded as a decree nisi, still the result would be the same, The general rule, no doubt, is that after an order for foreclosure nisi, the mortgagor can apply for, and in suitable circumstances and on certain conditions obtain, an order enlarging the time for redemption; but enlargement of the time is not a matter of course (Halsbury, Vol. XXI, e. 528). The power to extend the time is in the discretion of the Court, and in order to entitle himself do such indulgence the mortgagor must apply to the Court with reasonable promptitude. Assuming that it is permissible to treat the plaint in this suit as an application made in the foreclosure suit of 1875, the delay of forty-five years on the part of the mortgagor is fatal to his case.

14. The decree dismissing this suit is, in my opinion, correct, and I agree to the order proposed by the learned Chief Justice.


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