SABASTIAN DCRUZ Vs. LAXMAN SHREEPAD DEODHAR
LAWS(BOM)-1972-2-12
HIGH COURT OF BOMBAY
Decided on February 01,1972

SABASTIAN D'CRUZ Appellant
VERSUS
LAXMAN SHREEPAD DEODHAR Respondents

JUDGEMENT

- (1.) The original mortgagor-judgment-debtor, Sabastian D'Cruz, is the appellant here, being aggrieved by the Order of the Assistant Judge, Poona confirming the order of the Darkhast Court in the darkhast filed by one Vardichand Ramchand & Co., who was the second mortgagee. The appellant D'Cruz had mortgaged his house property to one Shripad Deodhar, the first mortgagee, Respondent Nos. 1 to 4 are his heirs. The appellant subsequently executed the second mortgage in favour of one Vardichand, who is respondent No.5. T he first mortgagee Deodhar filed Civil Suit No. 126 of 1954 against the appellant. The second mortgagee Vardichand was not made a party to the suit. The first mortgagee obtained a decree in his favour. The second mortgagee Vardichand also filed in that year another suit being Civil Suit No. 357 of 1954 against the mortgagor. The second mortgagee did not make the first mortgagee a part to the suit.
(2.) The first mortgagee, Deodhar, filed the execution proceedings against the original mortgagor and requested for sale of the mortgaged property. The mortgaged property was sold in the execution proceedings and the first mortgagee Deodhar purchased the suit property in auction. The second mortgagee, Vardichand then filed the present Darkhast for the purpose of executing his decree. He joined the first mortgagee, Deodhar as a party in the Darkhast proceedings. We are concerned here with the second mortgagee's Darkhast proceedings. The first mortgagee Deodhar objected to their being joined as party to the Darkhast. Later during the course of the Darkhast proceedings the first mortgagee gave a purshis and offered to redeemed the mortgage of the second mortgagee and in the alternative also prayed that if the second mortgagee Vardichand was ready and willing to redeem their mortgage, then they would be satisfied. The second mortgagee Vardichand, however, informed that he was not willing to redeem the mortgage of the first mortgagee Deodhar. The Darkhast of the second mortgagee, therefore, proceeded. The Darkhast Court held in the execution proceedings on 3-7-61 that the right of the first mortgagee to redeem the second mortgage subsists in spite of the Court's sale and his purchase of the mortgaged property. According to him the question of redemption would come at the time when the auction-purchaser wants possession of the mortgaged property on the strength of the sale certificate. He, therefore, held that the first mortgagee who had become the auction-purchaser in the execution proceedings property. It was also held that the first mortgagee continued to be the mortgagee qua the second mortgagee despite the auction sale in which the prior mortgage was a purchaser. The property, therefore, was ordered to be put to sale subject to the encumbrance of the first mortgagee.
(3.) The first mortgagee thereafter applied in the Darkhast proceedings of the second mortgagee for redemption of the second mortgage. Original mortgagor, D'Cruz, who is the appellant, here, objected to the application of the first mortgagee stating that he alone is entitled to redeem the second mortgage. That objection was rejected by the Darkhast Court and the learned Civil Judge held after carefully considering the matter that the first mortgagee shall redeem the puisne mortgage and that the puisne mortgagee will receive the amount deposited by the first mortgagee in Court. The original mortgagor had no right to redeem. Accordingly therefore, he held that the second mortgagee Vardichand should give a statement of the exact amount due to him and that the first mortgagee should deposit the amount which can be withdrawn by the second mortgagee from the Court. There was an appeal against this order. The learned Assistant Judge, who heard the appeal, dismissed it confirming the order of the learned Civil Judge. This order is, therefore, now challenged here by original mortgagor D'Cruz who wanted to redeem the second mortgage in the Darkhast proceedings of the second mortgagee.;


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