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Bai Mena W/O Patel Revabhai Ranchhodbhai Vs. Patel Vithalbhai Shambhubhai - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)3GLR104
AppellantBai Mena W/O Patel Revabhai Ranchhodbhai
RespondentPatel Vithalbhai Shambhubhai
Cases ReferredMunubhai Mahijibhai Patel v. Trikamlal Laxmidas
Excerpt:
- - court as well as the application which was made by the opponent were consolidated. the learned judge exercising jurisdiction under the act held that under the fresh mortgage deed on which the snit as well as the application were based what was mortgaged by the original mortgagors was only a right to receive the rent. as however this revision application could be decided on a different point altogether it is not necessary to decide this point of admissibility of evidence in this revision for it has been pointed out to me that the plaintiff in the original suit as well as the application under the act is a transferee of the interests of the original mortgagor and that therefore as a transferee of the original mortgagor who has no privity of contract with the mortgagee he is not a..........of contract with the creditor-mortgagee. in other words the debt in question is not a debt of the debtor-opponent as contemplated under the provisions of section 4 of the act. the b.a.d.r. court had therefore no jurisdiction to entertain and decide the suit which was transferred to it by the learned civil judge vijapur as also the application made by the opponent to the b.a.d.r. court.6. in these circumstances the decisions both of the trial court as well as of the first appellate court will be set aside and the original suit which was transferred to the b.a.d.r. court will be retransferred to the court of the learned civil judge junior division vijapur for being proceeded with according to law. the opponent to pay the costs of this application to the petitioner. no order as to costs of.....
Judgment:

R.B. Mehta, J.

1. This is a civil revision application against an order passed by the learned second Extra Assistant Judge Mehsana who set aside an order passed by the Joint Civil Judge Junior Division Vijapur acting as a Court under the Bombay Agricultural Debtors Relief Act 1947 (hereinafter referred as the Act).

2. The matter arises this way. One Thakore Harisinghji Kalaji a minor Through his guardian and mother Rajiba and one Rupaji Becharji jointly mortgaged a field being Survey No. 128 in Haripura village in Vijapur Taluka in Mehsana District in favour of the present petitioners predecessors in the year 1898 for a sum of Rs. 106/-. Thereafter a fresh mortgage was created by making up the accounts of the first mortgage transaction with a further advance of an amount of Rs. 25/- in favour of the predecessors of the present petitioners who are the successorsin-title of the original mortgagees on 30th July 1912. It appears that the mortgagors transferred their interest i.e., the equity of redemption to the present opponent Patel Vithalbhai Shambhubhai on the 28th June 1947 The transferee filed a redemption suit in the Vijapur Court on the 2 October 1947 for redeeming the mortgage and for possession of the field in question. This redemption suit was based on the fresh mortgage which was created on 30th July 1912. The suit was transferred by the learned Civil Judge Vijapur Court to the B.A.D.R. Court. It appears that simultaneously with these proceedings the opponent had also filed an application under Section 4 of the Act for adjustment of the debt in question to the B.A.D.R. Court itself. The result was that the above mentioned suit which was transferred to the B.A.D.R. Court as well as the application which was made by the opponent were consolidated. The learned Judge exercising jurisdiction under the Act held that under the fresh mortgage deed on which the snit as well as the application were based what was mortgaged by the original mortgagors was only a right to receive the rent. In view of this finding that what was mortgaged was the right to receive the rent only it was further held that the possession could not be given. There was an appeal against this order to the District Court in which appeal the learned second Extra Assistant Judge Mehsana reversed the trial Courts decision and allowed the appeal holding that the appellant was entitled to redeem the mortgage and get possession. The matter was then remanded to the trial Court for taking accounts of the mortgage transaction and for passing the final award. It is against this order of the learned second Extra Assistant Judge that the present revision application has been filed.

3.It is contended on behalf of the petitioner that the mortgagee was a permanent tenant of the mortgagors at the time of both the mortgage transactions and that what could be and was mortgaged was only the mortgagors right to receive the rent and at the most his right of reversion and that on the redemption of the mortgage there was no right in these circumstances in the mortgagor to take away the possession of the field from the mortgagee who was entitled to continue in possession of the field in question in the capacity of his being a permanent tenant. In order to show that the mortgagee was a permanent tenant the mortgagee wanted to rely on the previous mortgage deed of 1898 in which according to the mortgagee the character of his possession at the time of entering into the mortgage was indicated.

4. The trial Court held that the mortgage-deed of 1898 was admissible in evidence and acting on that evidence came to the conclusion that the mortgagors were not entitled to possession. The learned second Extra Assistant Judge on appeal, however, came to the conclusion that as the first mortgage-deed was not registered, it was not admissible in evidence. Before this Court a point was canvassed that though the first mortgage-deed is not registered, it is admissible in evidence to show the character of the possession of the field in question of the mortgagee. As however this revision application could be decided on a different point altogether it is not necessary to decide this point of admissibility of evidence in this revision for it has been pointed out to me that the plaintiff in the original suit as well as the application under the Act is a transferee of the interests of the original mortgagor and that therefore as a transferee of the original mortgagor who has no privity of contract with the mortgagee he is not a debtor entitled to make an application under Section 4 of the Act and if this is so then in that case the proceedings taken under the Act would become infructuous and null and void and in these circumstances the original suit must proceed from the, stage where it was left before it was transferred to the B.A.D.R. Court.

5. In support of this position of the non-maintainability of an application under Section 4 of the Act my attention is drawn to a decision given by my learned brother Mr. Justice Miabhoy reported in LX B.L.R. 1092 in the case of Munubhai Mahijibhai Patel v. Trikamlal Laxmidas while sitting in the former High Court of Bombay. In that case the position was similar as it is before me in the present revision application. In that case certain lands were mortgaged by the owner under a usufructuary mortgage to the mortgagee. The mortgagor then sold the equity of redemption to the opponent and the latter alter paying a certain amount to the mortgagor retained the amount of the mortgage debt for payment to the mortgagee. Subsequently the opponent filed an application under Section 4 of the Act for adjustment of the aforesaid mortgage debt and on the question of maintainability of the application it was held that the debt which the opponent sought to adjust was not his debt within the meaning of Section 4 of the Act and therefore the application for adjustment did not lie. I respectfully agree with the above mentioned decision and hold that in this case it was not open to the opponent-debtor to make an application under Section 4 of the Act for adjustment of his debt as he was a mere transferee of the original debtor and had no privity of contract with the creditor-mortgagee. In other words the debt in question is not a debt of the debtor-opponent as contemplated under the provisions of Section 4 of the Act. The B.A.D.R. Court had therefore no jurisdiction to entertain and decide the suit which was transferred to it by the learned Civil Judge Vijapur as also the application made by the opponent to the B.A.D.R. Court.

6. In these circumstances the decisions both of the trial Court as well as of the first appellate Court will be set aside and the original suit which was transferred to the B.A.D.R. Court will be retransferred to the Court of the learned Civil Judge Junior Division Vijapur for being proceeded with according to law. The opponent to pay the costs of this application to the petitioner. No order as to costs of the trial Court as well as the lower appellate Court. The costs not to include the costs of translations of the two mortgage-deeds.


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