HANMANT ANANT HASABNIS Vs. SHIDU SAMBHU GATADA

JUDGEMENT

(1.) A decree was passed in August 1886 in a suit between the respective predecessors of the parties in which a consent decree was taken in the following words: The plaintiff do pay to the defendants Nos. 2 and 3 Rs. 55 (in words fifty-five rupees) in respect of the debt on mortgage in the month of Chaitra of any year and the plaintiff do obtain possession of the lands in suit considering the same to have been redeemed from the mortgage. It should be understood that the plaintiff is not entitled to take possession of the lands in dispute in any other month except the month of Chaitra.

(2.) The plaintiff is now seeking to execute that decree and was met by the contention that execution was barred by limitation. The trial Court, relying upon the decision in Maruti V/s. Krishna (1899) I.L.R. 23 Bom. 592 held that the application was time-barred, and disallowed the plaintiff's application to treat the Darkhast as a suit under Section 47, Civil Procedure Code, as the relationship of mortgagor and mortgagee no longer existed.

(3.) This decision was confirmed in appeal by the District Judge, It seems that the decision of the Full Bench in Ramji V/s. Pandharinath (1918) 21 Bom. L.R. 56 F.B. was not considered. I do not think that the effect of the decree of 1886 was to put an end to the mortgage, and that is the real test. The relationship of mortgagor and mortgagee still continued to exist between the parties, only the mortgage amount which had previously been in dispute was settled, and it was directed that if the plaintiff paid that amount in Chaitra of any following year, the defendants should give back possession. If the plaintiff did not choose to pay the mortgage amount, then he had no right to apply for possession. It was really a preliminary decree. It is quite true that in Maruh V/s. Krishna, the Court considered that "when the words of the decree were vague and indefinite, and were to be considered as really mentioning no time for payment, the decree should be taken as operating from its date, and to be enforceable only within three years from that time, unless kept alive by application for execution made according to law within the prescribed periods."