MUGAPA CHANBASAPPA SAWADATTI Vs. MAHAMADSAHEB IMAMSAHEB

JUDGEMENT

(1.) We must set aside the decree of the lower Court and allow the execution in this matter to proceed. The decree for rent, it is admitted, remains unexecuted. But what is relied upon for the respondent is that according to a subsequent decree for redemption, a contain amount over arid above that due to him as mortgagee was appropriated by the appellant, during the time that he was in possession of the property as mortgagee. That, amount is adjudged to have been so appropriated upon account taken under the Dekkhan Agriculturists Relief Act. It is conceded that the Act did not apply at the time the decree for rent was obtained. That decree gave a right to the appellant to recover a certain amount from the respondent. The fact that in a subsequent decree passed under the Dekkhan Agriculturists Relief Act, it was found upon taking accounts in the way directed by the Act that the appellant as mortgagee had overpaid himself from the rents and profits cannot affect the right he had acquired under the previous decree which stands in all its force. The Dekkhan Agriculturists Relief Act nowhere provide? that where, upon an account taken under it, it is found that a mortgagee in receipt of rents and profits has overpaid himself, the overpaid amount becomes a debt due from him to the mortgagor and that the latter becomes entitled to recover it from the mortgagee. As was held in Ramchandra Babaji Sathe v. Janardan Appaji (1880) I.L.R. 14 Bom. 19, a mortgagor under such circumstances is only enabled by the Act to redeem his mortgaged property on favourable terms upon an account taken in the special mode directed by the Act; but the Act does not entitle the mortgagor to claim the payment from the mortgagee of any amount received from the property over and above the amount due on the mortgage on the footing of the account so taken. If that is so, the set-off allowed by the lower Court is plainly contrary to law.

(2.) The rent decree must be executed as it stands, having regard to the fact that the provisions of the Act do not apply to it, and that the accounts which were taken for the purposes of the subsequent decree were taken for a special purpose- that is, for enabling the respondent to redeem on favourable terms, not for entitling him to recover anything from the appellant.

(3.) The decree of the lower Court is reversed and the Darkhast is remanded to the Subordinate Judge to be executed according to law.