HARGOVIND Vs. NARAINDAS

JUDGEMENT

(1.) THE circumstances that give rise to this revision may briefly be stated as follows - Naraindas, Opposite-party, brought a suit against Har Govind and others, applicants, for redemption of the agricultural land in dispute in the court of the Nazim Sawai Madhopur on 26. 2. 1948. THE applicants, contested this claim on the ground that redemption should not be allowed without payment of Rs 2,598/ -. It appears that the creation of the mortgage and its liability to redemption were not at all the subjects of controversy in the case. THE trial court granted a preliminary decree for redemption on 10. 1. 1949 directing Naraindas to deposit Rs. 2,598-for payment to the mortgagee within three months, This direction of the court was complied with by Naraindas and there-after a final decree was passed on 22. 4. 1949. THE mortgagees, who are applicants before us, went up in appeal before the Collector, Sawai Madhopur, but met with no success. THEreafter they filed a revision before the Board of Jaipur of the former Jaipur State, which after formation of Rajasthan was transferred to the Court of the Additional Commissioner for being heard as an appeal. When the revision was pending in the Board, it is alleged that the parties had come to a compromise on 21. 9. 1950. In the court of the Additional Commissioner the appeal was twice dismissed in default but was restored and eventually the applicants took it back from that court on the ground that no second appeal lay in the matter. Hence this revision by them.

(2.) WE have heard the learned counsel for the parties and have examined the record as well. The only contention raised on behalf of the applicant before us is that the compromise arrived at between the parties on 21. 9. 1950 and filed in the Board should not have been ignored and that the case should have been decided in accordance with the terms of the compromise. To decide this point it is necessary to examine this alleged compromise carefully. This document when rendered in English would run as below - "we the parties in the case are prepared to enter into a mutual compromise on the following terms - (1) Har Govind, appellant's appeal be allowed and a decree for redemption passed by the lower courts be set aside. (2) The land and the well known as Bawajiwal in village Ghudasi, which is in the possession of Har Govind and for which redemption of mortgage was claimed and was granted by the lower court shall continue to remain with Har Govind and Naraindas shall have nothing to do whatsoever with the land, though he may take back the amount of Rs. 2,598/- deposited by him. " There are other conditions as well in this document which do not relate to the subject-matter of dispute and hence may be ignored for purposes of this revision. The learned counsel for the applicant has invited our attention to the provisions of order 23 rule, 3 C. P. C. which lay down that where it is proved to the satisfaction of a court that a dispute has been adjusted wholly or in part by Any lawful agreement or compromise then the same shall be recorded and a decree shall be passed in accordance therewith. Even if it be assumed for a moment that the alleged compromise was in fact arrived at between the parties the question remains as to whether it can be regarded as a lawful agreement or compromise or not. The rule clearly restricts the power of the court to record agreements or compromises, to such agreements as are lawful and the Court is therefore bound to enquire into the question whether the compromise it is asked to record is a lawful one or not. The term 'lawful' clearly means that it ought to be the legally enforceable. Agreements prohibited by law or which are opposed to public policy are clearly unlawful. By applying this test to the present case it would be found that the alleged compromise permanently deprives the opposite-party of his right to redeem the mortgaged property. It is a well-settled maxim of law that "once a mortgage always a mortgage". The right of redemption is inviolable. Hence any contract which directly or indirectly prevents the recovery by the mortgagor of his property upon performance of the obligation for which the mortgage was given as security is inconsistent with the very nature of the transaction. When the performance is completed there can be no justification for the retention of the security. On grounds, therefore, of logic as well as justice the courts have consistently held void any contract which in this sense is repugnant to the nature of a mortgage transaction. The so-called compromise which has been raised before us amounts to this description and cannot be legally held enforceable. There is no substance in this revision which is hereby rejected. .