KASTURCHAND FULCHAND Vs. BABURAO RAMBHAU SONAR

JUDGEMENT

(1.) This is an appeal by the original plaintiffs raising challenge to the judgment and decree passed by the Jt. Civil Judge, Jr.Dn., Kannad in Regular Civil Suit no. 94/76 on 28-8-1976 which has been confirmed by the 3rd Additional District Judge, Aurangabad in Regular Civil Appeal no. 281/86 by judgment delivered on 20-12-1990.

(2.) The plaintiffs instituted a suit seeking declaration that the order passed by the Tahsildar/Special officer in file No. 75/MAG, dt. 23-7-1976 directing the plaintiffs to handover the possession of the suit house bearing Municipal No. 1822 situated at Kannad as invalid, illegal and in excess of the jurisdiction conferred on the authority. The defendant had tendered an application before the Special Officer appointed under the provisions of Maharashtra Debt Relief Act, 1975 for releasing of the house property which is said to have been mortgaged in favour of grand father of the plaintiffs. It is contended that by virtue of mortgage transaction entered into in 1310 fasli i.e. 1910 A.D., the disputed house has been mortgaged in favour of the grand father of the plaintiffs. As per the terms of the deed of mortgage, it appears to be usufructuary and the same was to be redeemed within a period of 10 years. The defendant filed an application before the Special officer/Tahsildar, Kannad on 5-11-1976 praying therein that by virtue of operation of provisions of Maharashtra Debt Relief Act, 1975, the debt which was outstanding is deemed to have been repaid and as a consequence thereof, the mortgage shall be deemed to have been redeemed. The defendant as such claimed possession of the property which was in the hands of the plaintiffs. It further transpires that the Tahsildar on receipt of the application, issued notice to the plaintiffs. The plaintiffs caused appearance before the Tahsildar and sought adjournment to file say. However, the plaintiffs were not allowed time for the purpose of filing say and the decision was pronounced by the Special Officer on 23-7-1976 granting relief to the defendant as contemplated by provisions of Section 6 of the Act whereby the debt which was outstanding was directed to be liquidated. The plaintiffs were directed to handover the possession of the mortgaged property in favour of the defendants.

(3.) The plaintiffs have challenged the order passed by the Tahsildar/Special Officer by instituting a suit contending therein that the debt which was incurred by virtue of transaction that has taken place in 1910 was not to be deemed to be outstanding. It is further contended that the provisions of Maharashtra Debt Relief Act, 1975 are not attracted to the facts of the case. The Special Officer had no jurisdiction to entertain the application as the debt was not outstanding and recoverable on the appointed day. The plaintiffs contend that as per the terms of the mortgage, the same was required to be redeemed within a period of 10 years. The provisions of Limitation Act, 1908 were applicable whereunder limitation prescribed for redemption of mortgage was 60 years. However, by virtue of provisions of the Limitation Act, 1963, the period prescribed for redumption of mortgage is 30 years. Even if, it is considered that the debtor had right to redeem the mortgage within a period of 60 years, limitation for seeking redumption has expired on 29-7-1970 much prior to coming into force of Maharashtra Debt Relief Act, 1975. It is therefore contended that the application tendered by the defendant itself was not entertainable by the Special Officer. The order passed consequent upon such an application by the Special Officer is without jurisdiction and therefore liable to be declared as illegal and ultra virus.