APUJI RAMCHANDRA KULKARNI Vs. GUJA MHADU DHANGAR

JUDGEMENT

(1.) The facts, which have given rise to this second appeal are briefly these : one Dhondibai on behalf of her minor sons sued in 1897 to redeem a mortgage of the year 1859 in respect of the land in dispute. In that litigation a decree was passed by the Special Judge under the Dekkhan Agriculturists Relief Act on the 8th April 1899 the material portion of which is as follows:-"I set aside the decree of the lower Court and order that plaintiff do pay to the defendant Rs. 99 in payment of the mortgage-debt in respect of the land referred to in the plaint. Defendant do forthwith give possession of the land in dispute to the plaintiff. Plaintiff do pay Rs. 99 to the defendant by annual instalments of Rs. 25 each... Plaintiff should pay the assessment of the land and take the profit. If any threo instalments remain unpaid, defendant should recover the amount remaining due by sale (after obtaining the Court s permission for sale) of the mortgaged property or a sufficient portion thereof." This decree was not executed either by Dhondibai or by the defendant in that case. The possession remained with the defendant, who did not take any steps to have the property sold. On the 2Gth May 1899 Dhondibai mortgaged the property to the present plaintiff Bapuji Ramchandra Kulkarni. Though it purported to be a mortgage with possession, the mortgagee never obtained possession of the mortgaged property. The present suit was filed on the 19th June 1912 by Bapuji Kulkarni against the sons and heirs of Dhondibai to enforce this mortgage. The defendant, Jivraj Motiram, in Dhondibai s suit, was joined in the present suit as defendant No. 3 as a party in possession. Though the suit in form was to enforce the mortgage, it was in substance a suit to redeem against defendant No. 3 on the footing of his being a mortgagee at the date of the suit, and was so treated by the trial Court. The defendant 3 pleaded the decree of 1899 as a bar to the suit. It is not necessary to refer to defendants 4 and 5 for the purposes of this appeal.

(2.) The trial Court dismissed the suit as against defendants Nos. 3 to 5 and the lower appellate Court confirmed the decree of the trial Court. We are now concerned only with this part of the decree.

(3.) It is urged on behalf of the plaintiff, who has appealed to this Court, that his claim to redeem the mortgage is not barred. It is contended that as the decree of 1899 remained unexecuted, the original mortgagee (i.e. the present defendant 3) must be deemed to have continued in possession as a mortgagee, that the amount ascertained to be clue to him under the decree of 1899 might be accepted as boing payable to him and that his position would be for all practical purposes that of a mortgagee with possession after that decree. In support of the maintainability of the present suit Mr. Gokhale has relied upon Rama v. Bhagchand (1914) I.L.R. 29 Bom. 41 : 16 Bom. L.R. 687 and Siita Ram v. Madho Lal (1901) I.L.R. 24 All. 44. f.B. On behalf of defendant No. 3 it is argued in reply that the present suit is barred by a. 47, Civil Procedure Code, so far as it is based upon the decree of 1899, that the present plaintiff is not in any better position than his mortgagor, and that as Dhondibai could not have maintained a second suit to redeem her mortgagee after the decree the plaintiff cannot maintain it. It is contended that the present case is governed by the ruling in Hari Ravji Chiplunkar v. Shapurji Hormasji Shet (1886) I.L.R. 10 Bom 461, P.C.. Mr. Kane has also relied upon Vedapuratti v. Vallabha Valiya Raja (1901) I.L.R. 25 Mud. 300; Ranga Ayyangar v. Narayana Chariar (1915) I.L.R. 39 Mud. 896; Gan Savant Bal Savant v. Narayan Dhond Savant (1883) I.L.R. 7 Bom. 467; and Maloji v. Sagaji (1888) I.L.R. 13 Bom. 567. His argument is that the case of Rama v. Bhagchand is distinguishable on its facts, and that in any case having regard to the decisions referred to by him it should not be accepted as a binding authority.