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Ramjodu Mojumdar and anr. Vs. Poresh Nath Mojumdar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1889)ILR16Cal246
AppellantRamjodu Mojumdar and anr.
RespondentPoresh Nath Mojumdar
Excerpt:
redemption, right of - foreclosure decree--order absolute--redemption of mortgage before order absolute--transfer of property act (iv of 1882), section 87. - .....this section would be of no effect, and section 86 plus non-payment of the money would give a right of possession. section 87 of the transfer of property act provides that if the payment be not made within the time fixed in the decree, the plaintiff may apply to the court for an order that the defendant and all persons claiming through or under him, be debarred absolutely of all right to redeem the mortgaged property.' that means that without such an order the defendant would not be debarred of all right to redeem the mortgaged property. the fact that the legislature allowed the plaintiff to apply for such an order, shows that, without that order, the right to redeem would not be taken away. section 87 goes on to say: 'and the court shall then pass such order, and may, if necessary,.....
Judgment:

O'kinealy and Trevelyan, JJ.

1. In this case a decree for foreclosure was made in the ordinary form under Section 86 of the Transfer of Property Act. Subsequently the plaintiff, without taking any proceedings under Section 87, obtained an order for possession of the property and got possession accordingly. There were then some proceedings with reference to setting aside the decree which are not material to the present purpose.

2. Subsequently the appellant before us, the mortgagor, made an application to be allowed to redeem this property. The application was allowed by the Munsif on the ground that no order had been obtained under provisions of Section 87 of the Transfer of Property Act, but the District Judge on appeal set aside that order and dismissed the application for redemption.

3. We think the Judge was wrong in the order that he made, and that the Munsif was right. The terms of Section 86 have been taken apparently from the terms of the decree which was formerly made in the Court of Chancery in England, and there is no doubt that, under the procedure of that Court, the mortgagor was entitled to redeem, at any rate, up to the final order of foreclosure. There is authority showing that, even when that final order was made, the mortgagor could redeem; but for the present purpose it is not necessary to consider those cases. Apart, however, from the English cases, it is quite clear that the Legislature in enacting Section 87 intended to give some effect to it,. but if the respondents' contention were right, this section would be of no effect, and Section 86 plus non-payment of the money would give a right of possession. Section 87 of the Transfer of Property Act provides that if the payment be not made within the time fixed in the decree, the plaintiff may apply to the Court for an order that the defendant and all persons claiming through or under him, be debarred absolutely of all right to redeem the mortgaged property.' That means that without such an order the defendant would not be debarred of all right to redeem the mortgaged property. The fact that the Legislature allowed the plaintiff to apply for such an order, shows that, without that order, the right to redeem would not be taken away. Section 87 goes on to say: 'and the Court shall then pass such order, and may, if necessary, deliver possession of the property to the plaintiff.' If the property be not redeemed, the Court would have to pass an order absolute. It seems quite clear to us that the fact of the Legislature having made this provision, requiring an order absolute to be made, makes the earlier order simply an order nisi, and the mortgagor can at any time, until the order absolute is made, redeem his property. It was always the procedure, both in England and here, that, until there was an order that absolutely debarred the mortgagor from his rights, he could redeem. Of course the Court might put him on terms if there had been any delay, but there is no doubt that until there is an order taking away his right, he is entitled at any time to redeem.

4. As to interest, it seems that the mortgagee obtained possession on the 14th January 1887. The six months provided in the decree expired on the 4th July 1886, and the applicant, appellant, had paid into Court the principal, interest and costs.

5. We think, that the respondent is entitled to interest on the whole amount due on the mortgage for principal and interest at the end of the six months from decree, at six per cent, per annum from 4th July 1886 to 14th January 1887, when he took possession. He is clearly not entitled to any interest after the 14th January 1887.

6. The appellant does not ask for any account of mesne profits, so there will be no account of mesne profits from that date till now. The applicant will have one month from the date this order reaches the Court of the Munsif to pay the interest which he has not paid. If he does pay he will be entitled to possession of the property, and if he does not pay, it will be open to the other side to proceed in accordance with the law and to apply for an order under Section 87 of the Transfer of Property Act.

7. The appellant is entitled to his costs in all the Courts.


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