EKADASI SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) An interesting question of law that arises in this writ application is whether property conveyed under a deed of mortgage by conditional sale can be said to be property of the mortgagee so as to be included while determining the ceiling of the mortgagee under the provisions of the Orissa Land Reforms Act.

(2.) A ceiling surplus case was instituted against opp. party No. 5 which was registered as O.L.R. Case No. 139 of 1975 and in the said case the disputed property was taken into account. The petitioner objected to the inclusion of the disputed property on the ground that the petitioner was the mortgagor and it is the petitioner who is in possession of the land which has been upheld in a proceeding under Section 145 of the Code of Criminal Procedure and, therefore, the property could not have been included while determining the ceiling surplus in the hands of the mortgagee. The Revenue Officer rejected the said objection. The order of the Revenue Officer is annexed as Annexure -1. The petitioner preferred an appeal. The appellate authority set aside the order of the Revenue Officer and remanded the matter with a direction to initiate a proceeding against the petitioner. The said order has been annexed as Annexure -2. Opp. party No. 4 challenged the same in revision and the Additional District Magistrate interfered with the order of the appellate authority and allowed the revision as per his order, annexed as Annexure -3. The petitioner moved this Court in OJC No. 882 of 1933 challenging the order of the revisional authority. This Court being of the opinion that the revisional authority has not considered the terms and conditions of the deed for arriving at a conclusion, the conclusion that it was a mortgagee by conditional sale cannot be sustained on the aforesaid finding, the matter was remitted back to the revisional authority. The revisional authority thereafter disposed of the revision by the impugned order dated 26 -12 -1987, annexed as Annexure -5 and came to the conclusion that the transaction was a mortgagee by conditional sale and since the mortgagor has not taken steps for redemption, the right, title and interest over the property passed on to the mortgagee and consequently, the property should be taken into account while determining the ceiling of the mortgagee. It is this order which is being assailed in this writ application.

(3.) WE find sufficient force in the aforesaid contention of the learned counsel for the petitioner. In view of the terms and conditions contained in the deed of transfer, we agree that it is a deed of mortgagee by conditional sale. But the question that remains for consideration is whether the mortgagee becomes the absolute owner of the property automatically or he only gets the right for foreclosure and becomes absolute owner only on a decree for foreclosure being obtained. In case of a mortgagee by conditional sale, the remedy of a mortgagee is to institute a suit for foreclosure and the mortgagee does not automatically mature into a sale. It is only a decree for foreclosure that extinguishes the mortgagor's right to redeem and makes the mortgagee the absolute owner of the property from the date of the decree. (See Munna Lal and Ors. v. Munnu Lal and Ors., AIR 1914 All, 63 : Mahamaya Debi v. Haridas Haldar and Anr., AIR 1915 Calcutta 161 and Kuwarlal Amritlal v. Rekhlal Koduram and Ors., AIR 1950 Nagpur. 83). Since opp. party No. 5 was merely a mortgagee and had not filed any suit for foreclosure nor has he obtained a decree for forclosure the disputed property will not vest with him automatically and therefore, the property could not have been included in determining the ceiling surplus land in the hands of opp. party No. 5.