DHAMI NAVNITBHAI AMRATLAL Vs. BHAGVANLAL CHHAGANLAL

JUDGEMENT

(1.) Though the question raised in this appeal is a narrow one it was argued on a wider canvass and that has added to our anxiety in reaching the correct conclusion in this matter.

(2.) Facts lie in a narrow compass. Respondent No. 1 (mortgagee) had filed Special Suit No. 8 of 1962 against the appellants (mortgagors) praying for a decree for recovery of amounts under two mortgages one in the amount of Rs. 21 0 dated 19th July 1947 and another Rs. 16 0 under mortgage dated 21st March 1950 first being mortgage with possession Prayer specifically was for sale of the mortgage security and payment of the amount payable under the aforementioned two mortgages. This suit ended in a consent decree on 19th November 1962. There is some dispute between the parties whether the decree dated 19th November 1962 was a preliminary decree or a final decree or partly preliminary and partly final decree. By the decree the mortgagors were required to pay Rs. 18 0 within six months that is by 20th May 1963 with running interest at 6% per annum and if they failed to pay within the period of grace the mortgagee was entitled to recover the amount by sale of the mortgage security and balance if any by person and other property of the mortgagors. The decree further provided that as the mortgage security was in possession of the mortgagee he must retain the rent recovered and give credit for the same towards the decretal amount. As the mortgagors failed to pay the decretal amount within the period of grace the mortgagee filed Execution Application No. 7 of 1972 for sale of property and also for a further relief that in the event the amount realised by sale of the mortgage security does not satisfy the decretal debt balance to be recovered from the person and other property of the mortgagors. During the pendency of this execution proceedings the parties filed compromise statement variously described as adjustment or compromise on 7th October 1972 The mortgagors deposited Rs. 18 0 in the Court and mortgagee was entitled to withdraw that amount the mortgagee was required to return all the documents of title of the mortgage security. The mortgagee vacated and banded over peaceful possession of the mortgage property except ground floor portion thereof. It was further stated that one Jadavji Parshottam was in possession as tenant inducted by the mortgagee of the ground floor of the mortgage property and therefore the mortgagee has not been able to hand over vacant possession of the ground floor portion of the mortgage property and the mortgagors are entitled to obtain possession by proceeding according to law. It was stated that the mortgagee has no more claim under the aforementioned two mortgages or under the decree dated 19th November 1962 It appears that was treated as adjustment of the decree and was endorsed on the decree dated 19th November 1962 Thereafter the mortgagee judgment-debtor filed Execution Application No. 3 of 1973. In this execution application applicant mortgagee prayed for a warrant for possession against respondent No. 2 Jadavji who was in possession of of the ground floor portion of the mortgage property. The Executing Court issued warrant for possession under Order 21 Rule 35 of the Code of Civil Procedure (hereinafter referred to as Code) and in execution of the warrant possession was handed over to one Navnitlal one of the mortgagors. There were goods of respondent No. 2. and they were directed to be kept with the present appellant No. 1. In the mean time it appears that respondent No. 2 filed an appeal against the order of the Executing Court awarding possession in the High Court being Appeal No. 190 of 1973. A Civil Application No. 1078 of 1073 was moved in the appeal and order staying further proceedings in execution application was obtained. The High Court while allowing the appeal of respondent No. 2 directed to inquire whether decree in question was binding on respondent No. 2 and whether respondent No. 2 a tenant inducted by the mortgagee in possession can be directed in the execution application filed by the mortgagors to hand over actual possession of the property in his possession or an order for symbolic possession can only be made. Pursuant to these directions given by the High Court the matter was again set down for hearing by the Executing Court. The Executing Court ultimately made an order that direction for symbolic possession can only be given against the tenant inducted by the mortgagee in possession but he cannot be directed to vacate the premises nor can he be directed to hand over vacant possession in the execution proceedings. The mortgagors having been dissatisfied with this order have preferred this appeal.

(3.) Mr. S. B. Vakil learned Advocate who appeared for the appellants-mortgagors contended that a tenant inducted by the mortgagee in possession in the mortgage property on redemption of the mortgage is not entitled to any protection under the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Rent Act for short) because on redemption the mortgagees title comes to an end and anyone inducted by the mortgagee cannot have a title better than the mortgagee himself. It was said that if such a tenant of mortgagee is possession is not entitled to any protection of the Rent Act possession can be recovered from him in execution proceeding commenced by the mortgagors to execute consent decree or a consent order in execution proceedings on his paying the mortgage dues and claiming return of possession which would complete the process of redemption. It was said that such a consent decree can be made even in a suit brought by mortgagee in possession to recover mortgage dues by sale of mortgage property and such a decree can provide for return of possession to the mortgagors on payment of the decretal amount and such a decree can be executed through Court. Even if the decree was for sale of mortgage security Mr. Vakil contended that in execution of such a decree mortgagors can pay decretal amount at any time before sale is confirmed and either by consent of mortgagee or by an order of the Court under Order 34 Rule 5 ask for being put in actual possession and the Executing Court has jurisdiction to grant this relief. incidentally it was urged that the Executing Court has jurisdiction to record adjustment of the decree and such an adjusted decree can be executed. Lastly it was urged that even if the Court comes to the conclusion that a separate suit is necessary it is well settled that an execution application can be converted into a suit and execution application should be treated as a suit.