SETH MISRILAL Vs. SHANKAR

JUDGEMENT

(1.) 1. This appeal arises out of a suit instituted to foreclose a mortgage dated 18th September 1908, executed by Shankar Rao and Saheb Rao, defendants 1 and 2, in favour of Seth Laxmiehand of whom the appellants are the representatives. Dhar Rao, defendant 3, is Shankar Rao's son. Reference to the other defendants' case is unnecessary here as it is beyond the scope of this appeal. The suit was resisted on the ground that the mortgage Was executed while the property comprised in it, namely 16 annas of mouza Rohna and 12 annas of mouza Bineki, was at the disposal of the Collector to whom the two decrees in suit Nos. 9 of 1917 and 25 of 1915 were transferred for execution without his written permission. Dhar Rao, defendant 3, pleaded inter alia that there was no legal necessity for the mortgage. The lower Court held that the mortgage was void having been executed during the pendency of the Collector's proceedings without the Collector's permission. It further held that Rs. 620 out of Rs. 1,000 which formed the consideration of the mortgage were not justified by legal necessity and that the mortgagee did not make bona fide enquiries in that behalf. The plaintiffs' suit was therefore dismissed in toto. They have therefore preferred this appeal.

(2.) THE main question for determination in this appeal is whether the mortgagors were competent to mortgage the property notwithstanding that the Collector's proceedings were in progress in respect of it. To appreciate the contention it is necessary to narrate the facte. Two decrees had been passed against the mortgagors in favour of Surajmal and Tukaram in civil suits Nos. 9 of 1917 and 25 of 1915 respectively. The mortgagors' property which consisted of the entire village of Rohna, 12 annas share of Bineki and some absolute occupancy fields of Mouza Athner, was attached in execution of these decrees which were sent to the Collector for execution. The Collector decided to sell 12 annas share or Mouza Bineki and the absolute occupancy fields at Athner and kept Mouza Rohna in reserve, as he thought that the sale of the two items of property would fetch an amount sufficient to satisfy the debts, which amounted to Rs. 2,828-13-6. On 23rd April 1918 the judgment-debtor made an application for permission to mortgage the 12 annas share of Mouza Bineki including khudkasht, but not the sir, and the Collector accorded the permission. The intended mortgage in favour of Mt. Chote Bai did not materialise with the consequence that the 12 annas share of Mouza Bineki and the absolute occupancy fields of mouza Athner were ordered to be sold. The 12 annas share of Mouza Bineki was sold on 12th July 1918 for Rs. 1,770 and the absolute occupancy fields of Athner on 6th September 1918 for Rs. 2,700. On 17th August 1918 the judgment-debtor again applied for permission to mortgage his 12 annas share in Mouza Bineki, but no order was passed on it. On 6th September 1918, however the Collector accepted a deposit of Rs. 88-8-0, (being 5 per cent of the purchase money of Rs. 1,770-0-0 realized by the sale of the 12 annas share of Bineki) for payment to the execution purchaser and credited the proceeds amounting to Rupees 2,700-0-0 of the sale of the absolute occupancy fields of Athner as well as the private payment of Rs. 200-0-0 to the decree-holders towards the satisfaction of both the decrees under execution and set aside the sale of mauza Bineki.

(3.) IN principle this case is similar to the one reported in Khushalchand v. Nandram Sahebram (1911) 35 Bom 516. The respondents learned counsel relying on Mahadeo v. Krishnaji 1920 Nag 254, argues that the Collector could exercise his powers until the sale was confirmed on 12th October 1918. In that case the particular view taken by the learned Judge rested on the consideration that it was possible for both the decree-holder and the judgment-debtor to apply for the setting aside of the sale Under Order 21, Rule 90, or that the Collector might buy in the property offered for sale under para. 10(c) and resell the same by public auction, or private contract as he thought fit. Such eventualities could not obviously arise in this case as the decree itself was satisfied and both the judgment debtor and the decree-holder were benefited. With due deference to the learned Judge who decided that case, I think that the question whether the Collector could exercise powers or not, should be judged not from a purely theoretical point of view, but from the standpoint as to whether he could practically and effectively exercise any of his powers with respect to the property alienated under Schedule 3. After the Collector's certifiedtion of payment of the decree, the property the sale of which was set aside must be considered to have gone out of the jurisdiction of the Collector.