LADHURAM MANORMAL Vs. CHIMNIRAM DONGARDAS

JUDGEMENT

(1.) THE appellant in these cases is the lessor of certain house property. THE respondent is in two cases the lessee and in two other eases the auction-purchaser of the lessee's rights in execution of the decree in a suit brought by himself against the lessee as mortgagee of the lessee's rights. Some years after the mortgage the lessor sued the lessee on the lease, and the two suits were compromised on the lessee undertaking to pay up, all the rent in arrears by a certain date, failing which the lease was to be forfeited and the lessor given a right of re-entry. It is to be noted that the mortgagee was not a party to those suits between the landlord and the tenant. During this period the mortgagee sued his mortgagor (the lessee) and obtained a decree. Two executions of the landlord's decree were taken out by the lessor; and in August 1938 the lessor obtained a warrant for possession. In September 1938 the lessee's rights were bought at execution by the mortgagee of those rights, and in due course he interfered with the execution of the warrant for possession obtained by the landlord. THE consequent executions and applications for relief against forfeiture presented by the mortgagee-auction-purchaser resulted in the executions being dismissed; and the landlord has now come to us in second appeal against the dismissal of his executions and also against the orders allowing the auction-purchaser relief against the forfeiture clause, in the compromise decree.

(2.) IT is beyond question that the lessee himself would have been allowed to make an application for relief against forfeiture even in execution, since Section 114 of the Transfer of Property Act, though not in terms applying to execution, would (it has been held) apply to the execution of a compromise decree, which, in so far as it contains a clause for forfeiture, takes the place of a lease: see Balambhat v. Vinayak Ganpatrav (1911) I. L. R. 35 Bom. 239 : s. c. 13 Bom. L. R. 154.

(3.) THE appeals fail and are dismissed. .