KESHAVRAO VASANTRAO VIJAYKAR Vs. NANABHAI SADANAND

JUDGEMENT

(1.) This case under appeal raised a question of some difficulty with regard to the practice as to decrees in foreclosure suits filed in the High Court of Judicature at Bombay in its ordinary original civil jurisdiction. That original jurisdiction was inherited from the Supreme Court which in the exercise of the equitable jurisdiction conferred upon it by its charter presumably followed the chancery practice in foreclosure suits in England. Under that practice, though the decree is absolute in form and directs the property to be foreclosed on failure to pay on or before the day fixed in the decree, a further application is necessary in order to bar finally the mortgagor's right to redeem. In 1859 the Civil Procedure Code was enacted, and in 1861 by the High Courts Act, 1861, and the letters patent issued pursuant thereto, the original jurisdiction of the Supreme Court was transferred to the new High Court. It is not suggested that there were any rules dealing with this matter inherited from the old Supreme Court or made by the High Court itself under its statutory rule making power, and in these circumstances there would seem to have been some uncertainty as to whether the English practice was still to be followed, or it was open to the mortgagee to apply under the Code of Civil Procedure for execution of the foreclosure decree which was absolute in form in the same way as for execution of any other decree. The evidence in the present case shows that there was some uncertainty as to the effect of the appellate decree of 175, with which the Courts are concerned in this case, when it came before the Court two years later in a subsequent suit and, as will be seen, this question was then made the subject of an issue, as to which the finding, if any, has not been recorded.

(2.) When the question arose in the suit in which this appeal has been filed Kemp J., the trial Judge, was of opinion that it depended on the form of the decree in 0. Section 259 of 1875, in which Sadanand, hereafter referred to as the mortgagee, was plaintiff, and Atmaram, an executor under a will, hereinafter referred to as the mortgagor, was defendant, and the learned Judge came to the conclusion that the decree was a final one and that it had not been shown that when it was passed the law of procedure then applying required a further application to give it finality. As to this, Macleod C.J. observed in his judgment on appeal that the most that could be said was that in 1875, at the time the decree was passed, it was probably the practice to foreclose by proceeding in execution (that is under the Civil Procedure Code) instead of obtaining an order absolute. He was of opinion that, though the forms used for mortgage decrees in the Bombay High Court were the same as were used according to English practice for decrees nisi, there was no regular practice as to the course to be followed by the mortgagae when default occurred in the payment of principal, interest and costs within the time allowed. Coyajee J., the other Judge, agreed with the trial Judge that before 1880 it was not the practice of the Court upon non-payment of the money at the time prescribed, to require the mortgagee to obtain an order for foreclosure absolute against the person or persons in default, but it was open to him to foreclose by proceedings in execution.

(3.) As is well known this matter was settled by the Transfer of Property Act of 1882, which was applied to Bombay in 1894, and is now regulated by the Civil P. C. of 1908.