RAMCHANDRA LAXMAN Vs. BALBHIM BABAJI

JUDGEMENT

(1.) The plaintiff sued to recover possession of the suit property as the mortgagor. The original mortgage was passed by his father to his uncle Dada acting benami for the plaintiff's father. Dada mortgaged the plaint land with possession to one Bala in 1884. Dada brought a suit for redemption in 1892 under the Dekkhan Agriculturists Relief Act, and on taking account it was found that nothing was due under the mortgage and, therefore, a decree was passed directing that he should get possession. In appeal this decree was set aside. It was found that Rs. 310-9-0 were due to the mortgagee, and unless the sum was paid the possession was to be given back to the mortgagee. The amount was not paid and an order was made restoring the land to the possession of the mortgagee. It may be noticed that but for the erroneous order of the trial Court the land would never have got into the possession of the mortgagor. We may take it, therefore, that on the final order of the appellate Court the same effect resulted as if there had been originally a decree nisi in favour of the mortgagor, directing that if he paid Rs. 310-9-0 within the time fixed he should get possession of the property. He did not pay, and as far as one can see there is no order of the Court which could be considered to operate as a decree for foreclosure so as to put an end to the mortgage. Dada's heir Pandharinath gave up all his rights over the plaint property in favour of the plaintiff by a deed of release in 1920. The plaintiff has brought this suit for redemption. The defendants contended that the equity of redemption had been extinguished by the proceedings in the previous suit, and this contention has found favour with both the lower Courts.

(2.) We think that the learned Judges have not sufficiently recognized the effect of the Full Bench decision in Ramji V/s. Pandharinath (1918) I.L.R. 43 Bom. 334 : 21 Bom. L.R. 56. The simple decision there was that if a mortgagor brings a redemption suit and obtains a decree nisi, which entitles him on payment of a certain sum by a certain time to get back the property, and nothing further is done, and no attempt is made to get back possession, and no order is made barring the mortgagor's right to redeem, then a second suit can be brought for redemption and the same would not be barred either by Section 11 or Section 47 of the Civil Procedure Code, and if the facts in the present case could be brought within that Full Bench ruling, then the mortgagor in spite of the previous suit is entitled to redeem.

(3.) It has been suggested that if the suit is brought under the provisions of the Dekkhan Agriculturists Relief Act, some inherent element in a decree passed thereunder prevents the Full Bench ruling being made applicable. The Chief Justice said (p. 335 ): A suit for redemption under the Dekkhan Agriculturista Relief Act is substantially a suit co have an account taken in accordance with the provisions of Section 13, and a decree for foreclosure is never passed in the first instance, or until the mortgagor has had ample opportunity of paying the sum found to be due. But in such cases Section 47 of the Civil Procedure Code might affect the plaintiff's right of suit as Chapter XXXIV of that Code would not be applicable.