CHABILDAS LALLOOBHAI Vs. DAYAL MOWJI

JUDGEMENT

(1.) This is an appeal from a judgment and decree, dated the 25 June 1904, of the High Court of Bombay sitting on appeal from a judgment and decree passed, on the 26 February 1903, by Russell J. in exercise of the ordinary original civil jurisdiction of the same Court.

(2.) Most of the facts now material to the case are not disputed. On the 8 April 1896 the first respondent (hereinafter called the mortgagor) executed a mortgage of certain properties, including premises in Cowasjee Patel Tank Road, in the City of Bombay, which are the subject of this suit and appeal, in favour of the other respondents (hereinafter called the mortgagees) to secure an advance of Rs. 30,000 and interest.

(3.) The mortgage was of the English type and contained a power of sale in an ordinary form. A proviso followed that-" Upon any sale purporting to be made in pursuance of the aforesaid power ... the purchaser ... shall not be bound to see or inquire whether any such default has been made ....or otherwise as to the necessity or expediency of such sale or that the sale is otherwise improper or irregular. And notwithstanding any such irregularity such sale shall as far as regards the safety and protection of the purchaser. ... be deemed to be within the aforesaid power .... and be valid and effectual accordingly and the remedy of the mortgagor .... shall be in damages only." This last proviso is in substance an echo of Section 69 of the Transfer of Property Act, 1882.