IBRAHIM GOOLAM HUSENBUX Vs. NIHALCHAND WAGHMUL

JUDGEMENT

(1.) This is an appeal from the order of the District Judge of Thana disallowing the appellant s contention, that the execution of the decree passed against him in favour of Fojmal Navlaji and others could not proceed by bringing the mortgaged property to sale. Fojinal Navlaji and others were mortgagees of the appellant under a mortgage of the 10th of June 1913. That was a usufructuary mortgage. On the same day the defendant-mortgagor executed a rent-note in favour of the mortgagees for a period of twelve months, and as he did not pay the rent under that rent-note the mortgagees filed a suit, and obtained a decree for Rs. 1,000. Then they assigned that decree to the present respondents who sought to issue execution by sale of the mortgagor s equity of redemption in the mortgaged property.

(2.) It has been contended for the appellant that the respondents cannot be allowed to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage under Order XX.XIV, Rule 14, of the Civil Procedure Code. Now in cases of usufructuary mortgages it is not unusual for the mortgagees to allow the property to remain in the possession of the mortgagor on his executing a rent-note. But as a matter of fact that is merely a method of securing the interest by special agreement, that is to say, the mortgagor collects the usufruct and pays a certain amount to the mortgagee under the rent-note instead of the mortgagee collecting the usufruct himself.

(3.) It does not seem that the question which arises in this appeal has been decided in any reported case of this Court, although in more than one case which has lately come before this Bench, it has appeared that a mortgagee has obtained a rent-note from his mortgagor, and issued execution on a decree under that rent-note. At first sight it might appear that that is not a decree for the payment of money in satisfaction of a claim arising under the mortgage.