NARAYAN ANANDRAM MARWADI Vs. GOWBAI DHONDIBU JAGTAP

JUDGEMENT

(1.) The facts which give rise to the present appeal are that the plaintiff s predecessor-in-title executed a mortgage in 1885 in favour of the defendant s predecessors-in-title under which the mortgagee was to be entitled to possession for a period of sixteen years. During the currency of that period, in the year 1888, a Marwari creditor of the mortgagor filed a suit on a simple money-claim in the Vinchur Court and obtained a decree. In execution of that decree the equity of redemption of the mortgagor, that is to say the subsisting right, title and interest of the mortgagor, in the mortgaged property was put up for sale and purchased by a person Bandu Uderam who is not a party to these proceedings. In the year 1896 the mortgagee took a conveyance from Tikaram Uderam who described himself as the brother of Bandu Uderam in whose name the Court-purchase had taken ace of the interest purchased at that sale. Then at the end of the year 1908 the plaintiff filed this suit for redemption of the mortgaged property alleging in his plaint that the defendants resist redemption on the ground that the right, title and interest of the plaintiff Kondaji in the land in suit was attached and sold in execution of a simple money-decree at the instance of one Magniram Marwadi; that Magniram himself was the auction-purchaser in execution; that Magniram s heir sold that right to defendant No. 1 and the defendant No. 1 resists the plaintiff s right to sue on the ground of his being a purchaser of the land in suit. The plaint proceeds, " The plaintiff contends that he being an agriculturist could not be deprived of his right in the land by any attachment of his right in execution of a simple money- decree, that the sale in execution is illegal and of no effect whatever, and that Magniram (the auction-purchaser) and defendant No. 1 could not be said to be the owners of the said land as against the plaintiff No. 1, and that the plaintiff s right of redemption is not in any way affected by the sale."

(2.) On those allegations in the plaint the learned Subordinate Judge assumed that the Vinchur Court had sold the right, title and interest of the plaintiff and that the certified copy of the certificate of sale, Ex. 11, was good proof of that sale ; but he held that the sale was inoperative by virtue of the provisions of Section 22 of the Dekkhan Agriculturists Relief Act.

(3.) An appeal was preferred to the learned District Judge who decided upon the facts that the plaintiff and the original mortgagor had always been agriculturists from the date of the mortgage, and he adopted the conclusion of the Subordinate Judge that the sale was inoperative under Section 22 of the Dekkhan Agriculturists Relief Act.