GOVIND NARAYAN PRABHU Vs. BHIKU GOPAL MHALE

JUDGEMENT

(1.) THE appellants were some of the defendants in a suit brought by the respondents on a simple mortgage for Rs. 2,192 dated July 19, 1926. THE main defence to the suit was that the mortgage was void.

(2.) IN order to understand how the point arose it is necessary to note the facts leading up to the mortgage suit and also certain statutory provisions. IN a suit brought by the plaintiffs' predecessor against defendant No.1 and the father of defendants Nos. 2 to 4 on a promissory note, Suit No.200 of 1926, a decree was passed on March 12, 1926, for Rs. 1,610 and costs amounting to Rs. 228 and interest at the rate of six per cent, from the date of the suit, November 7, 1925. Execution was taken out, and in March, 1926, a darkhast was presented claiming Rs. 1,877 as due under the decree. On July 19, 1926, an application, exhibit 135, was put in by both parties asking the Court's permission for the execution of a mortgage of property belonging to the defendants in satisfaction of the decree. The application stated that the parties had settled amicably to get the darkhast disposed of by the execution of this mortgage and the Court was alsked to grant time for the purpose. The Court's order on this application was " Granted subject to the usual conditions. Costs on the applicant. July 19, 1926." IN making the order subject to the usual conditions it is evident that the Court had in mind Rule 83 of Order XXI of the Civil Procedure Code, 1908, for on June 7, 1926, an order for sale of the defendants' property had been made and it was therefore necessary to get the Court's sanction for postponement of the sale and execution of the mortgage. The mortgage deed duly executed was put in on the same day. It provided that the amount due to the decree-holder had been settled to be Rs. 1,950 and it was agreed that to this sum Rs. 242 should be added as advance interest and the total amount of Rs. 2,192 was made payable in four instalments of Rs. 548 each. The mortgage was executed in consideration of this amount, and it was provided that in case of default in payment of these instalments interest at six per cent, was payable on the amount of any instalment in arrears. It was also provided that the darkhast should be dismissed without any further steps being taken in execution. The defendants failed to pay as provided in the mortgage deed and on August 4, 1931, the mortgagees filed the suit which has given rise to this appeal against the mortgagors and subsequent mortgagees of the property.

(3.) IT has been argued by the defendants, and the contention has been accepted by both the lower Courts relying on a decision in Dattatraya v. Salvo (1931) 34 Bom. L.R. 404, that for the purposes of Section 13 of the Dekkhan Agriculturists' Relief Act, Section 257A of the old Civil Procedure Code remained in force in spite of its repeal by the Code of 1908.