PARVATIBAI HARIVALLABHDAS VANI Vs. VINAYAK BALVANT JANGAM
HIGH COURT OF BOMBAY
PARVATIBAI HARIVALLABHDAS VANI
VINAYAK BALVANT JANGAM
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(1.)The facts in these two appeals are as follows :-
On July 28, 1920, the appellant Parvatibai purchased for Rs. 65,000 certain immovable properties from one Martand Narayan. The latter alleged that the transaction was a mortgage and not a sale. Parvatibai had to bring a suit No. 249 of 1927 for possession with mesne profits. Pending the suit she applied for the appointment of a receiver. The defendant agreed to give security for the profits for the year 1927-1928, and one Mohite was offered and accepted as surety for the amount of Rs. 4,851, which was agreed upon as the amount of mesne profits for that year, on October 20, 1927. The form of the bond taken from him provided :-
Therefore I, Ganpat Narayan Mohite stand surety for the abovenamed Martand Narayan Indulkar and make an agreement for myself and my heirs by this document with the Court that the defendant will satisfy the decree or order that may be passed against the defendant in favour of the plaintiff, and that if he fails to do so and if the Court so orders I shall personally pay Rs. 4,851 as the Court may order or my heirs or executors will do so.
(2.)For the mesne profits for the following year 1928-29 one Babaji Sambhaji Jangam was offered and accepted as surety for Rs. 5,000. On November 8, 1928, he executed a surety bond in favour of the Court in essentially similar terms.
(3.)The suit was decreed in favour of the plaintiff on March 6, 1929. On April 16, 1929, the plaintiff filed darkhast No. 108 of 1929 against the defendant Martand for possession, mesne profits and costs. In this darkhast she obtained possession of all the immoveable properties except one house, but no part of the mesne profits was recovered. On July 15, 1929, she filed darkhast No. 192 of 1929 against Martand and the two sureties Mohite and Jangam, for recovery of the amounts mentioned in the two surety bonds. Then in July, 1929, the defendant filed an appeal in this Court (First Appeal No. 222 of 1929) in which he challenged the decree of the trial Court so far as it awarded possession, that is to say, the appeal was simply on the question whether the transaction was a mortgage or a sale and did not relate to the award of mesne profits. On July 19, 1929, the defendant applied for stay of darkhast No. 108 of 1929. The High Court granted a rule and interim stay on the usual terms leaving the question of security to the trial Court. The plaintiff then made an application in that Court in which she mentioned that her darkhast to recover the mesne profits was pending, that if the darkhast were to be stopped altogether Rs. 15,300 would be due from the defendant, that therefore the Court should take proper and solvent surety for Rs. 16,000, and that if the defendant failed to furnish this, the darkhast matter should be proceeded with. This application is exhibit 22 in First Appeal No. 186. In his reply to this application (exhibit 21) the defendant requested that as regards the mesne profits the same sureties should be taken as before. He suggested that a statement should be taken from them as to their willingness to furnish a fresh surety bond agreeing to pay such amount as might be ordered to be paid by the High Court, and suggesting further that if the Court did not deem it proper to continue those sureties a notice should be issued to them. It does not appear that any notice was issued, but on August 6, 1929, one Khan Saheb Dinshaw Adarji Wadia was appointed surety for the sum of Rs. 9,800, that is the total amount of mesne profits for which the two previous sureties were liable. The record does not show why the defendant offered a new surety in place of the former two sureties. The surety bond entered into by Wadia, which is exhibit 10 in First Appeal No. 186, recited :-
The defendant Martand Narayan Indulkar will abide by the final decree or order that might be passed in the said matter. If he fails to do so, I and my heirs will pay Rs. 9,800, if the Court passes orders to that effect.
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