BANSILAL Vs. MOHAMMAD ISRAIL

JUDGEMENT

(1.) One Shikh Ibrahim executed two mortgage deeds on 30-4-1923 and 9-4-1924 in respect of 4.00 acres and 8.00 acres of his land respectively in favour of Sunderbai wife of Latulal. On 11-4-1939 the said Sunderbai transferred her rights as a mortgagee to Sundersa Gulabsa Jain. Sundersa Gulabsa Jain filed two Regular Civil Suits for recovery of the mortgage dues and in the alternative for foreclosure of the right of redemption. The mortgages were described as "Lahan Gahan mortgages". During the pendency of the suits the Central Provinces and Berar Relief of Indebtedness Act, 1939 (C.P. Berar Act No. XIV of 1939) (for short "the Act") came into force and the suits were transferred to the Debt Relief Court established under the said Act. On the application made by the defendant-mortgagor a scheme for re-payment of the loan was framed under the Act and the mortgage dues were made payable by instalments falling due on 1st March every year as per the order of the Debt Relief Court. The instalment which fell due on 1-3-1948 was not paid by the mortgagor. The next instalment was due on 1-3-1949. On account of a temporary legislation titled Central Provinces Berar Relief of Agriculturist Debtors (Temporary measures) Act, 1949 (No. XXIV of 1949) enforced under the provisions of the Act whereby the date of instalment was postponed by one year from 1-3-1949 to 1-3-1950. The instalment which was due on 1-3-1950 was also not paid by the original mortgagor. Thus he committed two consecutive defaults in payment of instalments. The creditor-plaintiff filed an application under Section 13(3) of the Act on 31-8-1949 for a certificate as provided in the said Section. Finally, the Deputy Commissioner ordered issuance of the certificate under Section 13(3) of the Act on 24-9-1962 which was confirmed by the High Court in Special Civil Application No. 716 of 1964 by order dated 4th April, 1966. In the meantime the debtor deposited the entire mortgage dues in the Court on 30-5-1964.

(2.) Thereafter, on 17-1-1967 the creditors filed an execution petition with the prayer for delivery of possession of the mortgage properties from the debtors on the ground that the certificate issued by the Dy. Commissioner under Section 13(3) of the Act operates as a final decree for foreclosure, and therefore, they were entitled to possession of the mortgage properties. In the said proceeding judgment-debtors filed an application under Section 47 of the Code of Civil Procedure read with Section 151 of the Code contending inter alia, that possession of the mortgaged property should not be delivered to the creditors. They contended that the final decree as referred to in Section 13(3) of the Act should be treated as a final decree for sale and not a final decree for foreclosure of the mortgaged property.

(3.) The Executing Court accepted the execution petition filed by the creditors holding that the certificate operated as a final decree for foreclosure. Consequentially the objections filed by the debtors were rejected. The Court directed issuance of the warrant of delivery of possession. The said order was confirmed by the Extra Assistant Judge, Amravati in Civil Appeal No. 55 of 1969.