DHARAM SINGH Vs. CHHAJJU SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for the recovery of arrears of rent from certain thekadars. The defendants executed a deed of usufructuary mortgage in favour of the plaintiff and then took a theka from him. The defendants thereafter made an application under Section 4, Encumbered Estates Act. A money decree was passed in favour of the plaintiff on 28 August 1939, on the basis of the mortgage. The defendants did not get formal possession till 18 December 1940, but they were of course in actual occupation of the property as the result of the theka in their favour. The plaintiff then instituted the suit which has given rise to this appeal to recover rent from the defendants for the period from 28 August 1939 to 18th December 1940. The learned Assistant Collector dismissed the suit, but the learned Additional District Judge in appeal set aside his decision and passed a decree in favour of the plaintiff.

(2.) In this second appeal it is urged that the plaintiff had no proprietary interest in the property on the basis of the mortgage after 28 August 1939, and we think that this contention is right. Under Section 18, Encumbered Estates Act-, the effect of the decree of a Special Judge under sub S. (7) of Section 14, that is, simple money decree, shall be to extinguish the previously existing rights, if any, of the claimant, that is, the mortgagee together with all his rights, if any, of mortgage or lien by which the same are secured. It was quite clear that the mortgagee's rights as mortgagee ceased when the simple money decree was passed in his favour on 28 August 1939, and therefore he had no right to recover rent from the defendants. On the other hand, our attention has been drawn to a series of rulings of the Board of Revenue. These deal with cases like the. present where the Special Judge in passing his simple money decree has allowed interest to the mortgagee from the date of the delivery of possession. The learned members of the board decided that the mortgagee was entitled to the usufruct of the property up to the time when he lost possession and could claim interest. In our judgment this conclusion is not valid. It seems to be based upon the idea that the learned Special Judge can extend the period during which the mortgage remains in force by fixing a date from which the interest becomes payable. We can find no justification for this proposition in the provisions of the Encumbered Estates Act. A reference has been made to Section 35 of that Act. There seems to be an assumption that a person who no longer has any proprietary interest in property can continue to enforce his rights as long as he can defeat the decree and maintain possession over it. We do not think that this assumption is justifiable. It is the duty of a person against whom a decree is passed to submit to the decree as soon as possible.

(3.) The provisions for execution are necessary only to enforce a decree against a recalcitrant judgment-debtor. The provisions of Section 35, Encumbered Estates Act, are for the purpose of compelling a mortgagee who is in possession of the property under the mortgage to deliver up possession to the mortgagor after a simple money decree is passed in his favour, but properly speaking the mortgagee should deliver up possession as soon as the decree is passed because he knows that He has no right to remain in possession after the date of the decree. If he chooses to cling to possession and loses both interest and usufruct, that is entirely his own fault and there is no reason why any Court should have any sympathy with him. The simple point, in our judgment, is that the plaintiff in this case no longer had any rights as a proprietor or landholder of the property and consequently he could not bring a suit for arrears of rent or obtain a decree. We have some reluctance in differing from a series of decisions by the learned Members of the Board of Revenue, but we feel that there is really no doubt at all about the proper principle to be applied and, there, fore, we must apply it. As we have found that the plaintiff mortgagee no longer had any right as proprietor or landholder, we cannot allow the decree to stand in his favour. We, therefore, allow the appeal, set aside the decree of the learned Judge of the lower appellate Court and dismiss the suit with costs throughout.