A BATCHA SAHEB Vs. NARIMAN K IRANI

JUDGEMENT

(1.) I have read with great interest the order of my learned brother, with which I am in substantial agreement. In C. Rule P. Nos, 1663 and 1666 of 1954, in which we dealt with the court-lee payable on the suits, we expressed the view that they were limited in scope and that the City Civil Court had no jurisdiction to determine the scaled-down amounts, if the mortgagors were found to be "agriculturists" entitled to relief under Section 13-A, Madras Agriculturists' Relief Act as amended by Act 23 of 1948. Within this limited scope of granting an injunction restraining exercise of powers of sale under Section 69, T. P. Act until the scaled-down amount is determined in a competent court by appropriate proceedings, the City Civil Court has no jurisdiction, in my view, to lay down any terms under which the powers of sale under Section 69 can be exercised; nor can the mortgagee exercise these powers except for the scaled-down amount. It is regrettable that in the earlier injunction suit filed, the right of the mortgagee to substantial relief under Section 13-A was not even mentioned, and it would appear that this aspect of the matter was completely overlooked by the learned advocates for the mortgagor and the mortgagees throughout that previous litigation. In this view of the matter, I agree that C. M. A. Nos. 501 and 502 of 1954 filed by the puisne mortgagee and mortgagor respectively should be allowed with costs. L. P. A. Nos. 221 and 222 of 1954 which arise out of them, we are also separately allowing, hut without any order as to costs. C. M. A. Nos. 552 and 553 of 1954 by the mortgagees are dismissed without any order as to costs. In C. R. P. Nos. 1663 and 1666 of 1954, we have directed the parties to bear their own costs.

(2.) My learned brother has made some interesting observations on the powers of private sales by mortgagees under Sections 69 and 69-A, T. P. Act as amended by Act 20 of 1929, being abused by mortgagees in conditions prevailing in India which are rather different from those in the United Kingdom at the time of the English Conveyancing and the English Property Act of 1925, in the light of which Act 20 of 1929 was enacted. This is unfortunately true and not the only instance in which advanced English legislation has been made applicable to India without regard to Indian conditions and the machinery available here, with unfortunate results. The abuse has not however been one-way traffic, and mortgagors also show sometimes reciprocal resourcefulness in suits for injunctions, paying practically no court-fee in the lowest court of civil jurisdiction to restrain bona fide' honest mortgagees from exercising their powers of sale on some ground or other. I am in substantial agreement with my learned brother on the desirability for amended legislation to minimise, if not, avoid, abuse by a statutory provision for a right to a mortgagor, when served with notice of sale under Section 69(2), to apply to the court having jurisdiction to have the sale held through a commissioner appointed by the Court, acting under the court's control and instructions, on a reasonable fixed court-fee, the resulting sale, of course, paying the full stamp duty as in a private sale. It also appears necessary for the Court-fees Act to be radically amended so as to make it impossible for mortgagors to file injunction suits valued by them at will in any but the court having jurisdiction to try suits arising out of the mortgage itself. Krishnaswami Nayudu, J.

(3.) These appeals arise out of the two applica-tions filed by the plaintiffs before the II Additional City Civil Judge, Madras, in O. S. Nos. 980 and 996 of 1954, for an order of temporary injunction restraining the mortgagees, defendants 1 and 2, from bringing certain properties to sale in pursuance of a power of sale under Section 69, T. P. Act.