DATTATRAYA GOPAL LIMAYE Vs. MAHOMEDKHAN FATEKHAN DESHMUKH

JUDGEMENT

(1.) This is an appeal against a final decree in a redemption suit. The final decree was made on July 1, 1929. There had, however, been a preliminary decree, made on January 4, 1929, against which an appeal was made to this Court, No. 205 of 1926. The redemption suit was in respect of two mortgages, each for a different sum, executed in 1881 and 1892. The original Court had held that plaintiffs were not agriculturists, and had directed an account to be taken on that footing. In this Court it was held that the defendants were agriculturists, and consequently that they were entitled to have an account taken under the provisions of the Dekkhan Agriculturists Relief Act. It was also held on the question of the consideration of the earlier mortgage, that it was all furnished, and that it amounted to Rs. 13,206- 8-0. As to the consideration of the second mortgage, it was found that the question could not then be disposed of, since that mortgage had been based on a series of khatas, an account of which had to be taken under the Act by a Commissioner. This Court, therefore, varied the original Court's preliminary decree, and directed accounts of the first mortgage to be taken as set out in that judgment, and an account of the second mortgage to be taken by a Commissioner, under the Dekkhan Agriculturists Relief Act, and the question of instalments, if any, was directed to be decided after the final decree was drawn up. This judgment was delivered on September 3, 1929, two months after the final decree in the suit was made by the original Court.

(2.) The fact that a final decree had already been made was not brought A.C.J. to the notice of the Bench which heard the appeal against the preliminary 1934 decree, and this fact has caused so much delay since then. We think, it is clear that the final decree, based on findings of fact and law which have been set aside by this Court, must be reversed, and that the matter "must be remanded to the original Court for the taking of an account, as directed in the judgment of September 3, 1929, which we understand has not yet been done, as the accounts that have been taken are under the Civil Procedure Code, and not under the Dekkhan Agriculturists Relief Act, and only up to 1922, which is the date of the suit.

(3.) Mr. Dikshit for the appellants has now raised another question and has argued that as mortgagees have been in possession from the date of suit till 1928, when possession was given to the mortgagors, his clients are not bound to account for rents and profits received in that interval. He relied on the ruling in Ramachandra Venkaji Naik V/s. Kallo Devji Deshpande (1915) I.L.R. 39 Bom. 587, a decision of Sir Basil Scott and Mr. Justice Shah, in which in somewhat similar circumstances it was held that the mortgagee remained a mortgagee for the purpose of the redemption suit, even assuming that he had been in possession for more than twelve years since the death of the original mortgagor, and further that mesne profits from the date of suit could not be awarded to the mortgagors as the enforcement of the provisions of Section 13 of the Dekkhan Agriculturists Relief Act, 1879, placed the mortgagor in a much more favourable position than he would be in, if he relied upon the terms of the contract, and no presumption could arise that the mortgagee was, apart from the provisions of the Dekkhan Agriculturists Relief Act, not entitled to retain possession after the date of the institution of the suit.