SHEIKH MOHAMMAD HANIFF Vs. VINAYAK WAMANRAO THAKARE

JUDGEMENT

(1.) This is an appeal by the plaintiff's from an order of the Additional District Judge, Wardha, refusing to pass a final decree in terms of the preliminary decree for sale passed in a mortgage suit on November 9, 1943.

(2.) THE facts are simple and are as follows : On the foot of a mortgage executed by one Smt. Chandrabhagabai on October 21, 1926, the plaintiffs instituted a suit for the recovery of the money due thereon. She died during the pendency of the suit and her legal representatives who are respondents Nos. 1 -3 to the appeal were brought on record in her place. Various contentions were raised by them but they were overruled and a preliminary decree for sale was passed by the Court in favour of the appellants. The respondents preferred an appeal from thatdecree which was dismissed by the High Court of Judicature at Nagpur on December 26, 1950. It may be mentioned that the preliminary decree for sale was passed by the Additional District Judge on November 9, 1943. Under the decree the mortgage money was to be paid on or before May 9, 1944, and as it was not paid, the appellants made an application on January 15, 1945, to the Court which passed the decree for making the decree final. That application, however, was not proceeded with by the Court on the ground that, further proceedings were stayed by the High Court. Apparently, those proceedings were not resumed by the Court after the dismissal of the appeal by the High Court on December 26, 1950. In the meanwhile, the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, was passed. It may be mentioned that the mortgaged property consisted of 16 annas malguzari share in mauzas Jamgaon, Lakhanwada and Kalora, all of Tahsil Arvi, and Sir and Khudkasht lands situate therein. In addition, certain house property, kothas and open sites situate in mauza Jamgaon also formed part of the mortgage security.

(3.) A notice of this application was issued to the appellants under Section 21 of the Act. The appellants appeared before the Claims Officer in pursuance of the notice. In their written statement they contended that the respondents could not go behind the decree of the High Court and that the transactions could not be reopened. They further stated that the amount of compensation fixed by the Compensation Officer in respect of the three villages should be paid to them and that as a balance was still outstanding against the respondents after deducting the amount of compensation from the decretal amount, an order should be passed for the recovery of this amount from that part of the mortgaged property which had not vested in the State, but which was comprised in the preliminary decree.