PARASHARAM VISHNU DABKE Vs. PUTLAJIRAO KALBARAO SALVI

JUDGEMENT

(1.) The lower appellate Court has reversed a decree for sale obtained by the plaintiffs as mortgagees. The ground assigned for this decision is that where in the case of a usufructuary mortgage the mortgagor agrees to redeem by payment of the principal after a stated period the mortgagee has no higher or better rights than he has under a simple usufructuary mortgage.

(2.) The mortgage in question was effected in the year 1869.

(3.) At that date the right of sale by mortgagees in the mofussil was governed by Regulation V of 1827, Section XV, Clause 3, which provides that in the absence of any special agreement or recognised law or usage to the contrary either party may at any time by the institution of a civil suit cause the property to be applied to the liquidation of the debt; the surplus if any being restored to the owner.