RAMA SANKAYYA HEGDE Vs. MAHADEVA ANANT BHATTA

JUDGEMENT

(1.) APPELLANT No.1 and his father had mortgaged certain lands to the predecessor-in-title of the respondent in 1906. On the same day on which the mortgage deed was passed the father passed a registered rent note to the mortgagee and took possession of the lands agreeing to give a certain quantity of rice by way of rent and to pay the assessment. The mortgage was in favour of one Dattatraya Dixit. In 1912 the mortgage rights were transferred to one Ganpati Bhatta who in his turn transferred them to the present defendant in 1919. Rent according to the terms of the rent note was paid up till 1932-33. It fell into arrears in 1933 and the defendant made an application for assistance under Section 86 of the Bombay Land Revenue Code to the Collector. The Collector made an order in his favour for recovery of the rent and under that order the appellants' equity of redemption was sold under the provisions of the Bombay Land Revenue Code and was purchased by the defendant mortgagee on July 20, 1934, the sale being confirmed on August 27, 1934. On October 11, 1934, the appellants filed the suit out of which this-appeal arises for a declaration that the sale of the equity of redemption in the revenue proceedings was invalid and was not binding upon them as mortgagors. Originally there was also a prayer for taking accounts of the mortgage under the Dekkhan Agriculturists Relief Act. The trial Judge dismissed the suit. There was an appeal to the District Judge who confirmed the decree of the trial Court. Before the lower appellate Court the claim for accounts was given up and the appeal was pressed only as regards the contention that the sale of the equity of redemption by the revenue authorities was not binding on the appellants.

(2.) IT is not disputed that the respondent mortgagee was a superior holder within the meaning of Section 3, Sub-section (13), of the Bombay Land Revenue Code,, and the plaintiffs inferior holders as against him. Nor is it disputed that the respondent was entitled as such superior holder to apply for assistance to the Collector under Section 86 of the Bombay Land Revenue Code, IT is contended however that it was not open to the revenue authorities in granting assistance to order the sale of the appellants' equity of redemption. Section 86 of the Bombay Land Revenue Code provides that superior holders shall, upon written application to the Collector, be entitled to assistance, by the use of precautionary and other measures, for the recovery of rent or land revenue payable to them by inferior holders. There is nothing in the Bombay Land Revenue Code which would prevent the Collector from directing in a case such as this that the defaulting tenants' interest in the land should be sold for recovery of the amount made payable to the superior holder. IT is contended however that such an order would conflict with the principle underlying O. XXXIV, Rule 14, of the Code of Civil Procedure. That rule provides that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage. IT is conceded that in terms the provisions of the rule cannot apply to sales ordered under the provisions of the Bombay Land Revenue Code. In the first place the rights which the respondent sought to enforce by his application for assistance to the revenue authorities were not his rights as mortgagee but his rights as superior holder under the terms of the rent note. Further there is in this case no decree obtained by the mortgagee but merely an order for assistance from the revenue authorities. In terms therefore the rule clearly cannot apply to a sale held by the revenue authorities under Section 86 of the Bombay Land Revenue Code.