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Mahamad Ebrahim Alias Allimiya Walad Mamamad Salya Hurjuk Vs. Shaikh Mahomad Valad Shaikh Alli Arab and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Judge
Reported in(1920)ILR64Bom372
AppellantMahamad Ebrahim Alias Allimiya Walad Mamamad Salya Hurjuk
RespondentShaikh Mahomad Valad Shaikh Alli Arab and ors.
Excerpt:
dekhan agriculturists' relief act (xvii of 1879), section 15b(1) - mortgage-account--redemption--mortgagee allowed interest--mortgagee's liability to account for mesne profits from the date of suit till restoration of possession--practice. - .....amount of rs. 1,961-2-0 with interest at 6 per cent, on the principal amount of rs. 1,895-0-5 from date of suit and costs of various kinds, the whole amount to be paid by instalments of rs. 300 every year in january 1915. the plaintiffs were held entitled to recover possession of the property mortgaged at once, the mortgagee being liable to account for profits received from the date of suit till restoration of possession to the plaintiffs. the mortgagee has objected to that part of the decree which gives him 6 per cent, interest on the one hand, and directs him to account for profits received from the date of suit till restoration of possession to the plaintiffs on the other hand. the argument was based on the decision of this court in ramchandra venkaji naik v. kallo devji deshpande.....
Judgment:

Norman Macleod, C.J.

1. The plaintiffs sued for accounts under the Dekkhan Agriculturists' Relief Act and redemption. Accounts were taken, and by the decree of the lower appellate Court the plaintiffs had to pay into Court the amount of Rs. 1,961-2-0 with interest at 6 per cent, on the principal amount of Rs. 1,895-0-5 from date of suit and costs of various kinds, the whole amount to be paid by instalments of Rs. 300 every year in January 1915. The plaintiffs were held entitled to recover possession of the property mortgaged at once, the mortgagee being liable to account for profits received from the date of suit till restoration of possession to the plaintiffs. The mortgagee has objected to that part of the decree which gives him 6 per cent, interest on the one hand, and directs him to account for profits received from the date of suit till restoration of possession to the plaintiffs on the other hand. The argument was based on the decision of this Court in Ramchandra Venkaji Naik v. Kallo Devji Deshpande (1915) 39 Bom. 587. But there the facts were entirely different, at it was evidently held there that the mortgage had been paid off at the date of suit, and it was held by the Chief Justice that as the accounts were taken under the Dekkhan Agriculturists' Relief Act which are far more favourable to the mortgagor than the mortgage contract, and as nothing was said in the Act as regards mesne profits from the date of suit, the Court was not entitled, although the mortgage was paid off at the date of suit, to order the mortgagee in possession to hand over mesne profits from the date of the suit onwards. But here the mortgage is continuing and the Court under the Dekkhan Agriculturists' Relief Act has taken an account of what was due on the mortgage up to the date of suit, and under Section 15B(1) has directed as to what shall happen after the date of suit. The Court has allowed interest to the mortgagee at 6 per cent, and has directed the mortgagee to account for mesne profits. That the Court was entitled to do under the last lines of the sub-section. It is impossible for me to imagine that the learned Judges in the Courts, below, who must have passed numbers of decrees of this nature, were not acting in accordance with their usual practice, and if that practice was wrong, it must have been long before brought in appeal in this Court. In my opinion, the decision was correct and the appeal must be dismissed with costs.


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