AUTAR SINGH Vs. SIR MOHAMMAD EJAZ RASOOL KHAN

JUDGEMENT

(1.) This is an appeal by special leave from a decree of the Chief Court of Oudh, dismissing an appeal from an order passed by the Civil Judge of Lucknow in execution proceedings. The questions which arise are whether the Court's equitable jurisdiction to grant relief against penalties and forfeitures extends to the granting of relief in proceedings taken for the execution of a final decree for foreclosure, the decree having been passed by consent, and, if so, whether this is a proper case for the exercise of the jurisdiction.

(2.) On 16 January 1934, the appellants mortgaged three houses in Lucknow to Raja Sir Mohammad Ejaz Rasul Khan to secure an advance of Rs. 32,000. Possession of the houses was given to the mortgagee, who had the right to collect the rents from the tenants and, after providing for repairs, to appropriate the balance of the money received by him as rent in satisfaction of interest on the amount advanced. The mortgagors undertook to redeem the properties after five years by the payment in one sum of the total amount due. It was stipulated that if the mortgagors did cot redeem within the five years the mortgagee would have the right to obtain through the Court a decree for foreclosure. It was subsequently agreed that the mortgagors should collect the rents and, after deducting outgoings, should pay the balance to the mortgagee.

(3.) The mortgagors failed to redeem the mortgage at the end of the stipulated period of five years, and on 16 May 1939, the mortgagee instituted a suit in the Court of the Civil Judge, Lucknow, claiming a decree for the payment of the Rs. 32,000 and in default a decree for foreclosure. He also claimed to be entitled to a further sum of Rs. 7,000, which he averred was the balance of the rents collected by the mortgagors in accordance with the arrangement made subsequent to the mortgage.