PETRO ANTONIO LUCIANO SEQUEIRA Vs. GOOLBAI NADIRSHAW

JUDGEMENT

(1.) A very interesting question arises in this revision application with regard to the right, of a mortgagee under an English mort-gage to enforce his right of possession against the mortgagor. It appears that the petitioners mortgaged a property by an English mortgage to secure a sum of Rs. 33,000 and the mortgage was transferred to the opponents on 26-1-1949. There was a covenant in the mortgage deed that on the failure on the part of the mortgagors to pay interest as stipulated and to pay the mortgage amount on 26-1-1950, the mortgagees would be entitled to enter into possession. Admittedly the petitioners committed default both in respect of payment of interest and the payment of principal. Thereupon the opponents gave notice to the petitioners to attorn to" them as tenants. The petitioners refused to do so and thereupon the opponents took out proceedings under Chap, VII of the Presidency Small Cause Courts Act to eject. An order for ejectment was passed by the Small Causes Court, and it is against that order that this revision application is preferred.

(2.) MR. Sukhtankar's contention is that the Small Causes Court had no jurisdiction to entertain these proceedings under Chap. VII. Mr. Sukhtankar's contention is that what the opponents were doing was to enforce a provision under the mortgage and the opponents could not enforce that provision in the Small Causes Court, but they should have filed a suit in the High Court for doing so. On the other hand, Mr. Madon's contention on behalf of the opponents is that the petitioners were in possession of the property by leave and license, that the license determined when there was a default as provided in the mortgage deed, and on the default taking place the license was revoked and the opponents became entitled to the possession of the property.

(3.) NOW, well-known text books on mortgages and eminent English Judges have admitted frankly the difficulty in defining the relationship between a mortgagor and a mortgagee when the mortgagor remains in possession of the mortgaged property. We are here dealing with an English mortgage and an "english mortgage" is defined under Section 58 (e) of the Transfer of Property Act as: