SETH MISRILAL Vs. BHIMRAO

JUDGEMENT

(1.) IT was admitted by both sides that the lease of the land in dispute was granted in good faith, and with no intention of affecting the rights, the mortgagees would acquire if they obtained a final decree for foreclosure. This is more apparent from the fact that the preliminary decree for Rs. 1,400 and Rs. 447-14-0 as costs, was not obtained on the mortgage for Rs. 3,300 only. That and a previous mortgage for Rs. 1,300 were amalgamated on the 23rd of July 1904 in a fresh mortgage for Rs. 5,400 payable with interest in nine equal annual instalments of Rs. 500 and a tenth of Rs. 900, of which the first eight were duly paid. That adds to the certainty that in November 1917, when the lease was granted the mortgagors had by no means lost hope of redeeming the property.

(2.) BUT it is no longer contended that the lease is of such a nature that it would not have been granted if the lessor had known or expected that he was to continue indefinitely to be owner of the property. It is now pleaded that Section 52, Transfer of Property Act, forbids any lease of mortgaged property during the pendency of a suit on the mortgage, except under the authority of the Court. If that were the law it would create an impossible situation, though that would be no reason for refusing to follow it. But it is not. What was mortgaged was the proprietary right only in the field in dispute, and that the plaintiff has got. His rights under the decree have therefore not been affected.

(3.) THE appeal will be dismissed and the appellant must pay all the costs of both parties in all three Courts.