Decided on February 10,1954



Gajendragadkar, J. - (1.)This appeal raises a short question under Section 15 of the Bombay Agricultural Debtors Belief Act. A decree passed in civil suit No. 82 of 1936 is sought, to be executed in the present darkhast proceedings and the execution is resisted by the judgment-debtor on the ground that the decretal rights which are sought to be enforced in the present execution proceedings amount to a debt within the meaning of the Bombay Agricultural Debtors Relief Act and the said debt has been extinguished by the operation of the provisions of Section 15(1) of the said Act.
(2.)The point thus presented is short and interesting, but the facts leading to it are somewhat complicated. The property in suit originally belonged to Singadi. On February 7, 1910, Singadi executed a mortgage over this property in favour of Mallappa for Rs. 200. It would appear that Mallappa had advanced several sums on money bonds to Singadi and the extent of these loans was about Rs. 500. In 1915 a dispute arose between Singadi and Mallappa in respect of these dealings. The matter was referred to arbitration and it resulted in an award on January 10, 1915. In terms of this award a decree was passed in civil suit No. 66 of 1915. This decree provided that Maliappa was to enjoy the property under mortgage for 20 years after paying Rs. 200 to Singadi. Singadi in turn was given liberty to return Rs. 900 to Mallappa within 20 years, whereupon the property was to be returned to Singadi free of incumbrance. If Singadi failed to pay the aforesaid amount within the period specified to Mallappa, Mallappa was to be the owner of the property as from the 21st year after the date of the decree. It may be added that during this period of 20 years Singadi was liable to pay the assessment, and the decree provided that if he failed to pay the assessment, Mallappa should pay the same and should recover it from Singadi with interest at the rate mentioned in the decree.
(3.)On May 28, 1934, Singadi sold the equity of redemption to the present appellant. Mall-appa's rights were likewise assigned by Mallappa in favour of Shri Shallappa on July 8, 1935. In his turn Shri shailappa assigned his rights to the present respondent on June 21, 1949. Before this assignment took place, however, Shri Shailappa sued the purchaser of the equity of redemption for possession of the property in question, on March 21, 1936. This was civil suit No. 82 of 1936. Shri Shailappa alleged that the property in suit along with other properties had been let by Mallappa to Singadi and were in the possession of the purchaser of the equity of redemption subsequent to his purchase as a tenant. At the expiration of the period mentioned in the lease the other properties were surrendered to Shri Shailappa, but not the property then in suit. That is why he claimed to recover possession of the said property from the defendant. The defendant disputed the title of the plaintiff-assignee, set up a compromise by which he was entitled to remain in possession of the property in suit and contended that the plaintiff was no more than a mortgagee. According to the defence the plaintiff could not claim to be the owner of the property in suit. On these pleadings appropriate issues were framed and a decree was passed in favour of the plaintiff. It may be added at this stage that during the pendency of the suit the plaintiff filed a purshis in which he expressed his willingness to obtain a decree for possession even on the basis that he was a mortgagee and not an owner if the Court came to the conclusion that he was not an owner but a mortgagee.

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.