PANDHARI YOGAJI Vs. DIGAMBARDAS ROSHANCHAND GUJRATHI

JUDGEMENT

(1.) IN 1896 Yogaji brought a suit against Dattu and others for possession of certain immovable property. The suit was based on a sale deed but the plaintiff admitted that he had promised to re-sell 4he property if the consideration was re-funded with interest at 18 per cent, per annum within a year. The Court held that the transaction was a mortgage and not a sale, and passed a decree directing that the defendant Dattu should pay Rs. 310 with interest to the plaintiff within two months, and that on default in payment the plaintiff should be entitled to possession and to retain possession until Rs 310 with interest at 18 per cent, per annum was paid. Apparently nothing was paid, and Yogaji was placed in possession in execution of that decree. The present suit has been brought by the representative-in-interest of Dattu against the heirs of Yogaji. The plaintiff's case is that Yogaji was in possession as possessory mortgagee, that the amount due on the mortgage has been paid off out of the profits of the property, and that the plaintiff is therefore entitled to be placed in possession. The trial Court held that the suit was barred by Section 47, Civil P.C. The lower Appellate Court held that it was not.

(2.) UNDER Section 60, T.P. Act, a mortgagor has a right to redeem unless that right has been extinguished by act of the parties or by decree of a Court. The decision of their Lordships of the Privy Council in Raghunath Singh v. Hansraj Kunwar (1934) 21 AIR PC 205 has decided a point on which there has been some difference of opinion. That decision makes it clear that unless there is a previous decree debarring the mortgagor of his right to redeem it is open to the mortgagor to bring a second suit for redemption and that such a suit is not barred by Section 11 or Section 47, Civil P.C. The present suit however is based on the decree and not on the original transaction and it appears to me to be indistinguishable from Hari Ravji v. Shapurji Hormasji (1886) 10 Bom 461. There the original suit was to enforce a mortgage and there was a decree that so much was due to the plaintiffs and that the plaintiffs should use and enjoy the field until what was due to them was paid and that the defendants on paying what was due under the mortgage, after deducting the profits, should be placed in possession. No date for payment was fixed and it was open to the mortgagors at any time to make a tender of the amount due and require the land to be restored to them. Their Lordships of the Privy Council upheld the view of the lower Courts that this was a matter relating to the execration of the decree and could not be decided by a separate suit. Whether the plaintiffs in that case could have successfully based their claim on the original mortgage and not on the decree was a matter which their Lordships refused to decide as that was not the case put forward. In the case before me, the plaintiff has relied on the previous decree and not on the previous transaction, and the claim seems to me to be a matter relating to the execution of the decree. The learned Additional District Judge has stated that as soon as the property was put in possession of Yogaji the decree was completely executed, but the decree expressly provided, as in Hari Ravji v. Shapurji Hormasji (1886) 10 Bom 461, that Yogaji was entitled to retain possession only until what was due to him was paid up, and that was a matter that could and should have been decided in execution proceedings. The appeal is therefore allowed and the suit will stand dismissed with costs throughout. No counsel's fee as no certificate is filed. Leave to appeal is refused.