SADASHEORAO GOVINDRAO HARSHEY Vs. LAXMICHAND GULABCHAND

JUDGEMENT

(1.) RESPONDENTS 1 and 2, Laxmichand and Dulichand, are the decree-holders. -They obtained a final decree for sale against respondent Govind Rao Harshey, in civil Suit No. 8A of 1987, in respect of the mortgaged property in suit and they started execution of the final decree for sale.

(2.) IN the meantime respondent and his two infant sons Sadashiv Rao and Ramchandra Rao, now appellants, applied to the Debt Relief Court for settlement of the debts under the final decree for sale under Section 6(1), Order P.C Berar Relief of Indebtedness Act, 1939 (14 [XIV] of 1939). The decree-holders were joined as parties. The scheme for payment of the mortgage-debt that was ultimately prepared by the Debt Relief Court was subject to a certain condition and it was laid down that in case of breach of that condition the scheme should cease to have effect and the whole claim would be-come recoverable. The decree-holders thereafter applied to the civil Court for sale of the mortgaged property on the ground that the judgment-debtors had broken the condition that was attached to the scheme and that they were, therefore, entitled to recover the whole amount by way of execution. The final decree for sale was, therefore, executed, the property was put to sale and it was bought by the auction-purchaser, Mahila Vidyalaya, Saugor, which is represented by respondent 3, Gopal Rao Mutatkar.

(3.) THE first appellate Court held on the authority of the ruling reported in Balwant Singh v. Bindabai A.I.R. 1924 Nag. 28 that the Debt Relief Court had no jurisdiction to entertain the debtor's application for conciliation of the mortgage debt on the ground that it had ceased to be a debt by reason of the final decree for sale. That finding is now untenable, for the simple reason that the case relied upon, has since been overruled by the Full Bench case in Rukhmabai v. Shamlal . I have already held in Dewaji v. Narayan Misc S.A. No. 155 of 1943 that the mortgage debt does not cease to be a debt within the meaning of Section 2(d), C.P. and Berar Relief of Indebtedness Act 1939, merely by reason of a final decree for sale. I have already stated my reasons in that case as to why a final decree for sale cannot be treated on the same footing as a final decree for foreclosure. For the reasons given in that decision I hold that the Debt Relief Court had jurisdiction to conciliate the mortgage debt and prepare a scheme for its repayment under Section 11(1), C.P. & Berar Relief of Indebtedness Act 1939.