SULEMAN RAHIM PATHAN Vs. DATTU BABAJI PATIL

JUDGEMENT

(1.) This second appeal arises out of execution proceedings and raises an interesting question as to the extent of liability of a purchaser of mortgaged property where the liability of the original mortgagor is reduced by reason of the application of the provisions of the Bombay Agricultural Debtors Relief Act, 1947, which we will hereafter call 'the Act'.

(2.) THE short facts are that one Shamrao Jadhav owned two survey Nos. 37 and 26 at Bisur. He mortgaged both these survey numbers to the predecessor -in -title of respondent No. 1, Dattu Babaji Patil. Thereafter the mortgagor Jadhav sold Section No. 26 to the appellant and respondents Nos. 3 and 4. The mortgagee instituted a suit to enforce the mortgage, being suit No. 21 of 1936, and joined the appellant and respondents Nos. 3 and 4 whom we will hereafter call 'the purchasers' as defendants together with the original mortgagor Shamrao Jadhav. A mortgage decree was passed on July 31, 1937, for a sum of Rs. 1,800 with interest at 6 per cent, per annum on Rs. 900 plus costs and interest. On September 12, 1938, the decree -holder assigned the whole decree to respondent No. 1 whom we will call 'decree -holder'. The decree -holder filed a Darkhast for execution of the decree against Shamrao Jadhav in 1945. As soon as the Act was brought into force, the darkhast was transferred to the special Court constituted under the Act for adjustment of the debts of Jadhav. The trial Court declared him an insolvent under Section 47 of the Act and considering his property and his debts declared all his debts extinguished. Jadhav had two creditors at this time, one of them being the present decree -holder. Both these creditors appealed to the District Court. The District Court confirmed the decision of the trial Court as to the other creditor but as regards the decree -holder, the learned Judge scaled down the decretal debt to Rs. 1,532 -5 -3 and transferred the decree for execution to the regular Court. The learned Judge while confirming the order of insolvency also held that S. No. 37 which was still retained by Jadhav could not be sold in execution of any decree against Jadhav. The transferred Darkhast was renumbered as Darkhast No. 290 of 1956. The decree -holder then filed another Darkhast, being Darkhast No. 272 of 1957, against the purchasers for recovery of the entire decretal amount out of S. No. 26.

(3.) MR . Paranjpe argued that in view of the provisions of the Act it ought to be held that the liability of the purchasers was reduced to the same extent as the liability of the mortgagor was reduced by the Special Court. In any case he contends that under general law the same result must follow.