Basavarajappa vs Samrathmal

Anand Byrareddy, J.—Heard the learned Senior Advocate Shri R.L. Patil, appearing for the Counsel for the petitioner and the learned counsel appearing for the respondent.

The petitioner was the judgment-debtor before the court below. The background to the present proceedings is as follows:-

The suit was filed by the respondent for redemption of mortgage. It was the claim of the plaintiff that there was an oral mortgage and on the basis of which, the mortgage amount of Rs. 2,00,000/- was paid to the present petitioner, who was the defendant. The trial court dismissed the suit on the ground that an oral mortgage is not conceivable and since, a mortgage deed is a compulsorily registrable document and in the absence of any such deed, the contention that there was an oral mortgage could not be accepted and the suit was dismissed. In an appeal before this court, in its appellate jurisdiction, the court proceeded to hold, relying on the decision of the Supreme Court as well as decisions of the Rangoon and Rajasthan High courts, that even if an oral mortgage could not be enforced in a court of law, it would be open for the plaintiff to recover possession on the strength of his title, and therefore, proceeded to consider the suit not as being over, for redemption of mortgage, but for recovery of possession and refund of money and consequently, had found favour with the plaintiff''s case and had set aside the judgment and decree of the trial court and decreed the suit for possession and also directed the plaintiff to deposit the sum of Rs. 2,00,000/- borrowed from the defendant. Execution having been taken out of the said judgment and decree, the petitioner is before this court, contending that the suit originally framed was one for redemption of mortgage and the frame of the suit was also on that basis. Even though the High Court, in its appellate jurisdiction, has proceeded to consider the suit as if it was one for refund of money and recovery of possession, the relief granted ultimately is in respect of a suit for redemption of mortgage. The decree drawn up was also is as if it is a preliminary decree in a suit for redemption of mortgage. Therefore, the procedure contemplated under Order XXXIV Rules 7 and 8 of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity) is that the amount would have to be deposited as directed by this court within the time fixed by law. Though this court had directed the amount to be deposited in four weeks, the law prescribes that it is within a period of six months and that such amount has been deposited. It would then be for the plaintiff to file an application seeking that the Final Decree Proceedings be drawn up in terms of Order XXXIV Rule 8 of the CPC. However, the court below has proceeded as if it was an execution petition and after deposit of the money, has directed that the possession of the property be handed over. It is that which is sought to be challenged in the present proceedings.

Since it is not in dispute that this court has, on the appellate side, taken a view that the suit could be maintained as one for possession and refund of money and has accordingly having decreed the appeal and that having attained finality, it would be improper for this court, in its writ jurisdiction, in respect of a judgment rendered by a co-ordinate bench, to re-interpret the object and intention in the judgment and decree passed in appeal and to hold that it was yet a decree for redemption of mortgage and then direct that the procedure contemplated under Order XXXIV be followed to the letter. Having regard to the tenor of the judgment, it is not permissible for this court in its writ jurisdiction to vary the terms and the tenor of the language and import of the judgment rendered in appeal. Consequently, it shall therefore be treated merely as a decree for possession and refund of money and the proceedings before the executing court are therefore to be held to be in order. There is no warrant for interference and the petition is dismissed. The executing court shall proceed to decide on other issues that may be raised before it in accordance with law.

ABJ: W.P. 13245/2013 & W.P. 13246/2013

21.08.2014

Orders on ''for being spoken to''

The petitions having been disposed of by order dated 19.08.2014 at the instance of the learned Senior Advocate Shri R.L. Patil appearing for the counsel for the petitioner, the matter is heard over again on a related aspect.

It is the case of the petitioner that even during the pendency of the proceedings, there was a partition deed executed by the plaintiff, his wife and his sons. It is further stated that in terms of the Partition Deed which was a registered document, the suit property has fallen to the share of the plaintiff''s son and this is a contention that has been raised before the Executing Court and in spite of that legal aspect having been raised and without the petitioner being heard, the Executing Court has proceeded to issue a delivery warrant which is to be executed. Therefore, if the same is executed, the contentions raised become redundant and may result in a miscarriage of justice.

Since that aspect has not been addressed by the Executing Court, this Court expressing any opinion on the legality of such a contention would be foreclosing the petitioner''s say before the Executing Court. Therefore, the Executing Court is requested to hear the petitioner on the above aspect of the matter and proceed, in accordance with law. In the meanwhile, the execution of the delivery warrant is directed to be withheld till such time orders are passed on the above aspect of the matter by the Executing Court. The Court shall endeavour to dispose of the matter with expedition.

Ordered accordingly.