LAXMISHANKAR DEVSHANKAR Vs. HANJABHAI USUFALLY

JUDGEMENT

(1.) The property to which this suit refers is situated in Ahmedabad and known as the Dudhadhari Vadi, which was managed by the Mohants of a certain temple. The last Mohant was one Surajbharthi who disappeared in 1886. Thereafter one of his sons Dattabharthi took his place until he went on a pilgrimage. In 1902 a report having been received that he was dead one Vaghbharthi was installed on the Gadi alleging that he was a Chela of Surajbharthi. One Shivbharthi claiming to be the Chela of Dattabharthi filed a suit in the Mamlatdar s Court for possession. Meanwhile, Dattabharthi returned and a decree was passed in Shivbharthia favour in 1904 under which Dattabharthi got possession of the Vadi. Dattabharthi and Shivbharthi mortgaged the property to one Shivnath in 1904 for Rs. 8,000, and again executed a fresh mortgage, which consolidated the first mortgage, on the 25th October 1904 for Rs. 5,000. Shivanth got possession of the property as mortgagee. Then Vaghbharthi filed a suit for possession against Dattabharthi, Shivbharthi and Shivnath. Vaghbharthi and Dattabharthi referred the disputes between themselves to arbitration, and under an award decree the property was awarded to Vaghbharthi on payment of Rs. 1,201 to Dattabharthi. That sum was paid in satisfaction which was recorded. It must be noted that Shivnath and Shivbharthi were not parties to these proceedings. Vaghbharthi then attempted to obtain possession of the property under the award decree, but owing to the opposition of Shivnath and Shivbharthi lie did not obtain possession. His next step was to file a redemption suit against Shivnath, and that was dismissed for non-payment of Court-fees. In 1910 he again attempted to issue execution under the award decree, but that application was dismissed for default. In the name year Dattabharthi and Shivbharthi executed another mortgage to Shivnath for a total of Rs. 9,000, which included the Rs. 5,000 belonging to the mortgage of 1904. It was obvious that Dattabharthi was then adopting an attitude opposed to the award decree. In February 1911 Vaghbharthi agreed to sell to Laxmishanker, the present plaintiff, but the sale-deed was not registered until the 21st February 1912, arid it was not until 1915 that Vaghbharthi assigned the award decree to the purchaser, About the same time the sale- deed to Laxmishanker was registered, Shivnath, Dattabharthi and Shivbharthi purported to sell the property to the present defendants for Rs. 25,000, and Shivnath was actually paid Rs. 12,000, and passed an indemnity bond undertaking to refund Rs. 12,000 if it was found that the vendor had no title. Laxmishankar in 1912 issued a Darkhast to execute the award decree and execution was opposed by the present defendants. He then applied by Miscellaneous Application No. 87 of 1913 to have the obstruction removed. That application was made under Order XXI, Rule 97. The Court rejected the application and said that the applicant must bring a regular suit if he wants possession from Shivnath, the original mortgagee, or his representatives, in the circumstances stated above. It did not attempt to enter into an inquiry whether the claim of the mortgagee to be in possession was good against the applicant. The applicant appealed from that order and the order was confirmed by a decree of the High Court in First Appeal No. 168 of 1913. The judgment says: "It is clearly for the benefit of the purchasers of Shivnath s rights under the deed of 23rd February 1913 to keep alive these mortgage rights. We cannot hold that they have been extinguished. It may be a question, whether Shivnathji had any rights, but that could only be established in a suit brought against Shivnathji or his transferees, who were not parties to the award decree".

(2.) Thereupon the plaintiff filed this suit under Order XXI, Rule 103. It states that "any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which ho claims to the present possession of the property; but, subject to the result of such suit, (if any), the order shall be conclusive." There must be some distinction between a regular suit and a suit filed under Order XXI, Rule 103. There is a specific period of limitation prescribed for suits brought under Order XXI, Rule 103, namely, Article 11 A of the Indian Limitation Act. But that only applies when the Court dealing with an application under Order XXI, Rule 97 enters upon an inquiry and investigates the claim. See Rustomji s Limitation Act, p. 215, referring to Meerudin Saib v. Rahisa Bibi (1903) I. L. R. 27 Mad. 25. and other cases cited in foot-note 4. But if it appears that the Court declines to enter upon an inquiry regarding the validity or otherwise of the mortgage or other title on which the person obstructing the possession of the decree-holder relies, and directs the decree-holder to bring a regular suit, then it seems to me that it is no use for the decree- holder to bring a suit under Order XXI, Rule 10S. He is referred to the ordinary procedure to establish a claim which he seaks to make against the property. In this case as the Subordinate Judge had made no inquiry into the validity of Shivnath s mortgage, but merely directed the decree-holder to bring a regular suit, and that order was confirmed by the High Court, it follows that no conclusive order had been made, and the decree-holder was entitled to his ordinary remedies to establish his right to the property claimed by Shivnath, and he could only do that by getting the mortgage set aside. This suit now under appeal, although filed under Order XXI, Rule 103, is dealt with by the learned Subordinate Judge as a regular suit. Although he came to the conclusion that the plaintiff ought to have filed a regular suit, and not one under Order XXI, Rule 103, still a very large number of issues were raised, and a great deal of evidence relating to those issues was taken, and the learned Judge came to the conclusion that Shivnath s mortgages were not nominal mortgages or without consideration.

(3.) The plaintiff, considering the attitude of the learned Judge as regards the mortgages of Shivnath, seems to have then asked that the nature of the suit should be changed to a suit for redemption. This request was disallowed, and we think rigthly, us that would entirely alter the nature of the suit, whether it was brought under Order XXI, Rule 103, or whether it had been brought originally as a regular suit. It seems to me that the finding of the learned Judge that the mortgage was not purely nominal, and without consideration, is justified by the facts of the case, since so far back as 1907 Vaghbharthi had filed a suit to redeem Shivnath, and thereby admitted that the mortgage was valid, and the only question to be considered was what was the amount due to the mortgagee so that the mortgagor could redeem the mortgage, and these facts were perfectly well-known to the plaintiff who bought Vaghbharthi s rights in 1911.