BAI SURAJ Vs. HARIBHAI MOTABHAI

JUDGEMENT

(1.) THIS is an appeal in execution proceedings, and the question is whether an executing Court can refuse to execute a consent decree on the ground that to do so would be in contravention of Section 1 of the Bhagdari and Narwadari Act (Bom. V of 1862).

(2.) THE plaintiffs, now respondents, are the owners of lands in a bhagdari village. THEy mortgaged two sets of properties described as B and C to the defendant appellant by three mortgages, one in 1923, one in 1926 and one in 1929. THE plaintiffs remained in possession of the B properties under a rent-note. THE mortgagee got possession of the C properties. In 1931 he filed two suits for arrears of rent and possession of the B properties, and in 1932 the plaintiffs filed a suit for a declaration that the mortgage was void as contrary to the Bhagdari Act and for possession of the C properties.

(3.) THE litigation between the parties was disposed of by a compromise in accordance with which a decree was made on January 5, 1933. THE consent decree determined the amount due under the mortgage deeds and made it payable by installments. It directed that the B properties were to remain in possession of the plaintiffs, who were also to get possession of the C properties after April 26, 1933. THEn it went on to provide that in case they failed to pay three of the installments the defendant-mortgagee was to recover possession of all the properties, i.e. both the B and C properties, and should get possession if necessary by instituting execution proceedings. THE properties were then to remain in the defendant's possession until the whole balance was paid.