PANDURANG DHONDI CHOUGULE Vs. MARUTI HARI JADHAV

JUDGEMENT

(1.) This appeal by special leave arises out of proceedings initiated under the provisions of the Bombay Agricultural Debtors Relief Act, 1939 (No. 28 of 1939) (hereinafter called the Act'). The respondent Maruti Hari Jadhav and two others moved the B. A. D. R. Court at Karad on May 26, 1949, for adjustment of the debt alleged to be due from them to the appellants, Pandurang Dhondi Chougule and others. Their case was that the debt in question was due under a mortgage deed executed by their grand-father in favour of the grand-father of the appellants on August 29, 1881. By this mortgage, six agricultural lands situated at Kapil in the former State of Oundh had been mortgaged to the mortgagee with possession for a sum of Rs. 575. In 1908, the respondents' predecessors-in-interest sued on this mortgage in the Court of the Sub-Judge at Kapil (Civil Suit No. 28 of 1908-09). This suit was, however, withdrawn with liberty to file a fresh suit. Then followed another suit by the respondents in the same Court for redemption of the mortgage (No. 102 of 1932-33). On September 2, 1936, a decree came to be passed in the said suit. According to the respondents, the decree directed them to pay Rs. 3,677-12-6 within six months from the date on which it was drawn, but the said money had not been paid; even so, the relationship between the parties continued to be that of the mortgagors and the mortgagees, and so, they were entitled to claim adjustment of the debt in question. The respondents also pleaded that the decree which was passed in the said suit was in the nature of a preliminary decree and though the appellants were entitled to apply for making the said decree final after the expiration of the six months period prescribed by it, they took no such action and the mortgage debt, therefore, remains unpaid and the equity of redemption vesting in the respondents is unextinguished,. That, in brief, is the nature of the claim made by the respondents in the application made by them under the Act for adjustment of their debt due to the appellants.

(2.) It appears that the State of Oundh merged in the erstwhile State of Bombay and thereafter, the Act was extended to the said State. That is how the respondents commenced the present proceedings under the provisions of the Act thus extended to the State of Oundh.

(3.) The appellants also made an application for the adjustment of the debt due under the decree in Suit No. 102/1932-33 in the Court of Joint Civil Judge, Karad; but in doing so, they made it perfectly clear that they were making the application as a matter of precaution and without prejudice to their contention that the equity of redemption had been extinguished and the parties no longer stood in the relationship of creditors and debtors. In fact, it was the appellants who first made the application on May 19, 1949, and the respondents followed by their application on May 26, 1949, For the purpose of hearing, these two applications were consolidated by the trial Court.