Smt. Rosamma (Deceased) by L.Rs and Others vs B.V. Ramachandrappa

Hari Nath Tilhari, J.-This is a plaintiffs'' appeal arises from the judgment and decree dated 4-2-1997 given by S.R. Kazia Mohamad Muzzammi, I Additional City Civil Judge, Bangalore, in O.S. No. 333 of 1980, whereby the Trial Court dismissed the plaintiffs'' suit for redemption, declaration and permanent injunction.

The case of the plaintiffs in nutshell are that the appellants/plaintiffs and defendants 2 and 3, who were later transposed as plaintiffs 2 and 3 had executed the mortgage with possession of the suit schedule property in favour of the first defendant under a registered deed of mortgage dated 8-11-1965 and given registered lease deed of the suit schedule property for the payment of interest regularly. That lease deed was by way of security for payment of interest on mortgage amount. The plaintiffs'' case is that the defendant never delivered possession and the lease deed was nominal. The plaintiffs allege that on 9-11-1965 plaintiffs and the minor defendants i.e., transposed plaintiffs 2 and 3 executed another mortgage in favour of the defendant and obtained Rs. 1,000/-. The plaintiffs alleged that the plaintiffs never delivered possession to defendant 1, nor possession was taken back on lease. The plaintiffs claim to have always been in possession of the suit schedule property. Under the terms of the mortgage deed, the period of redemption of mortgage was after the expiry of three years from the date of the mortgage deed and within five years from the date of the said deed. The plaintiffs further alleged that after the expiry of the said period, the plaintiffs and minor defendants i.e., transposed plaintiffs 2 and 3 requested the first defendant to receive the mortgage amount along with interest and to return the title deeds with discharge share, but the first defendant failed to receive the said amount under the said two deeds of mortgage, instead filed the suit for arrears of rent i.e., O.S. No. 38 of 1969 and obtained ex parte decree without any notice or knowledge to the plaintiff/appellants and thereafter filed the Execution Petition No. 1342 of 1969 and without the knowledge of the plaintiffs and without impleading the minor transposed plaintiffs 2 and 3 of the suit as parties of the said suit and brought execution and got the property auctioned and in that auction sale the first defendant playing fraud and mischief purchased the suit schedule property and obtained the sale certificate on 9-6-1971 and on 28-5-1972 tried to demolish the suit schedule property. The plaintiff/appellants'' alleged that they got information of the ex parte decree and purchase of the property by defendant 1 in the Court auction, only on 28-5-1972 the day on which 1st defendant tried to demolish the building. So the plaintiffs filed the suit for the above reliefs.

The first defendant denied the plaint allegations and alleged that the plaintiffs/appellants were not entitled to seek redemption of mortgage. The first defendant alleged that it is true the plaintiffs executed mortgage deed with possession of the suit schedule property in favour of the first defendant and had taken a sum of Rs. 6,000/- from defendant 1. The first defendant further asserted that the plaintiffs executed a registered lease deed in favour of the first defendant and took the plaint schedule premises on lease from him. Defendant 1 asserted that the above two mortgage deeds were executed by the plaintiffs in favour of defendant 1 in her own right and original defendants 2 and 3 had nothing to do with the transaction, nor they have entitled to any share in the suit schedule property. Defendant 1 alleged that it is wrong to say that the registered lease deed was executed by the plaintiffs as security for the payment of alleged interest on the possessory mortgage. Defendant 1 asserted that the suit schedule property belonged to one Sri Perumal Naidu, who had purchased the same as a site from one Sri Gurukarya Munisamappa under a registered sale deed dated 18-9-1905. The said Perumal Naidu, according to the first defendant''s case, sold the suit schedule property by registered sale deed to his wife Yallamma on 13-2-1943. The said Yallamma died on 10-11-1946 leaving behind her husband Sri Perumal Naidu and her two minor daughters viz., plaintiff 1 and one Smt. Kuppamma. Upon the death of Smt. Yallamma, her two minor daughters viz., plaintiff 1 and Smt. Kuppamma became absolute owners of the suit schedule property and the adjoining portion thereof. According to defendant 1, Sri Perumal Naidu was managing the property on behalf of her minor daughters. Sri Perumal Naidu died in the year 1948 leaving behind his two minor daughters unmarried i.e., plaintiff 1 and Smt. Kuppamma. He further alleged that there has been partition among the two sisters vide the deed dated 8-11-1965 under which the western portion bearing No. 27/10 measuring 30'' x 55'' fell to the share of Smt. Kuppamma and the plaint schedule property which is the western portion measuring 30'' x 65'' fell to the share of the 1st plaintiff. This defendant/respondent asserted that the plaintiffs borrowed a sum of Rs. 6,000/- from defendant 1 and executed the registered usufructuary mortgage deed on 8-11-1965 and put the first defendant in possession of the suit schedule property. Thereafter, on the same day, under a registered lease deed dated 8-11-1965 the first plaintiff took the suit schedule property on lease. According to this defendant, the plaintiffs fell arrears of rent in respect of the lease of the plaint schedule property and so defendant 1 had to file the suit for the recovery of arrears of rent against the plaintiff. According to the defendant, the plaintiffs leased out portions of the suit schedule property to different tenants. First defendant/respondent admits that he obtained a decree against the plaintiffs in O.S. No. 38 of 1969 on the file of the First Munsiff, Bangalore and in Ex. Case No. 1342 of 1969 on the file of the First Munsiff, Bangalore. The said property was put to auction sale and with the permission of the Court defendant-Ramachandrappa got the same for a sum of Rs. 17,500/- and the sale was confirmed in favour of the defendant on 10-2-1971 in Misc. No. 87 of 1971. The defendant alleged and claimed himself to be the absolute owner in possession and enjoyment of the suit schedule property and asserted firstly, that defendants 2 and 3 i..e, transposed plaintiffs 2 and 3 have no right or interest in the same and secondly, the plaintiffs have lost the equity of redemption by virtue of the Court sale in favour of defendant 1 (respondent herein). So, the suit is not maintainable. Defendant 1 denied that the plaintiffs made offer, and asserted that the suit for equity of redemption had already been lost on account of the sale of the suit schedule property in favour of the defendant. Hence, the suit for redemption was not maintainable.

The Trial Court on the basis of the pleadings of the parties framed the following issues:

Whether the 1st defendant proves that the plaintiff was the exclusive owner in possession of suit property and transposed plaintiffs 2 and 3 were nominally added as executants in mortgage deeds?

Whether the transposed plaintiffs 2 and 3 prove that the said mortgages were made by plaintiff in collusion with the 1st defendant and that they were not bound by said mortgages as averred?

Whether the plaintiff proves that the lease deed was made as security only for payment of interest on mortgage amount?

Whether she further proves that the sale in favour of 1st defendant in execution case is null and void?

Whether the 1st defendant proves that the plaintiff can''t question the validity of said sale?

Whether he further proves that the relief claimed by plaintiff with regard to said sale is barred by Section 47 of the CPC and principle of res judicata?

Whether the plaintiff proves that Karnataka Debt Relief Act, 1976 applies to the present case?

Whether the 1st defendant proves that the plaintiff is not a ''debtor'' as defined under the said Act?

Whether the plaintiff proves that she can and entitled to have benefit of provisions contained in said Act?

Whether 1st defendant proves that the claim of plaintiff regarding sale is barred by limitation?

Whether he further proves that the amendment of plaint allowed on 25-8-1990 can be taken as effective from the date of amendment?

Whether the plaintiff proves that the transposed plaintiffs 2 and 3 have still a right to get redeemed suit property from 1st defendant?

Whether the first defendant proves that the right of redemption is extinguished by virtue of sale in execution?

Whether the plaintiff proves cause of action for the suit?

Whether the plaintiff is entitled to and can have the reliefs claimed?

To what reliefs, the parties are entitled?

The Trial Court held that defendant 1 has established that the plaintiff was exclusive owner in possession of the suit schedule property and the transposed plaintiffs 2 and 3 were nominally added as executants in the mortgage deed. It further found that transposed plaintiffs 2 and 3 have failed to prove that the said mortgages were made by the plaintiff in collusion with defendant 1, and so they are not bound by the mortgages. The Trial Court further held that the plaintiff had failed to prove that the lease was made as security for the payment of interest on the mortgage amount. It also found that the plaintiff had failed to establish that the said deed executed in favour of first defendant/respondent was null and void. The Trial Court opined that it was open to the defendants to challenge the validity of the sale deed. The Trial Court opined that the Karnataka Debt Relief Act did not apply to the present case and that the plaintiff is not entitled to the benefit of the provisions of the said Act. It held that the suit is barred by limitation and that the plaintiff had no right to get the suit schedule property redeemed. It opined and held that defendant 1 has proved the right of redemption which the mortgagor had in it had extinguished by virtue of the sale in favour of defendant/respondent having been made in execution Case No. 342 of 1969 on 10-2-1971. As such, the plaintiff/appellant is not entitled to get any reliefs. Having recorded the above findings, the Trial Court dismissed the plaintiffs'' suit for redemption.

Feeling aggrieved from the judgment and decree of the Court below dismissing the plaintiffs'' suit for redemption, the plaintiffs have come up in appeal before this Court.

I have heard Sri R. Jayaprakash, learned Counsel for the appellants and Sri B.N. Ananthanarayana, learned Counsel for the respondents for good length of time.

On behalf of the appellants, Sri R. Jayaprakash, Advocate contended that the Court below acted illegally and erred in law in holding that the plaintiffs/appellants right to seek decree for redemption of mortgage extinguished, because of the sale in Execution Case No. 1342 of 1969 in the matter of recovery of the arrears of rent under the decree passed in O.S. No. 38 of 1969 on confirmation of sale in favour of 1st defendant/respondent on 10-2-1971 and in further holding that the suit is bared by res judicata and under Section 47 of the Code of Civil Procedure. The learned Counsel contended that the Trial Court''s view that the purchase of tenancy rights extinguished right of redemption of the mortgagor is contrary to law. The learned Counsel for the appellants contended that it is well-established principle of law that once a mortgage it is always a mortgage and the right of redemption continues, unless it is determined or under law it is extinguished in accordance with the provisions of Section 60 of the Transfer of Property Act, 1882 read with Order 34 of the Civil Procedure Code. The learned Counsel contended that the provisions of Order 21, Rule 19 of the CPC were not applicable. The right of redemption can come to an end only in the manner provided in law under Section 60 of the Transfer of Property Act, 1882 no doubt read with Order 34 of the CPC as well. The learned Counsel contended that under Section 60 of the Transfer of Property Act, 1882, it can be revoked by the Act of parties or by decree of the Court. The learned Counsel for the appellants, in this connection, made reference to the following decisions in.-

(i) Raghunath Singh v Mr. Hansraj Kunwar, AIR 1934 PC 205, in support of his contention that right of redemption is and can be extinguished only by means and in manner specifically provided under the proviso to Section 60 of the Transfer of Property Act.

(ii) In Mathuralal v Keshar Bai, AIR 1971 SC 310.

(iii) In Mhadagonda Ramgonda Patil v Shripal Balwant Rainade, AIR 1988 SC 1200.

@BODY-LSP = The learned Counsel for the appellants submitted that the right of redemption cannot and could not be extinguished by a mode otherwise than what is provided under Section 60 of the Transfer of Property Act and proviso thereof. He submitted that the decree of the Court referred to in the proviso to Section 60 of the Transfer of Property Act refers to the final decree passed either in the suit for redemption or in a suit for fore-closure and not otherwise. The learned Counsel has referred to the decisions of the Supreme Court in the case of Maganlal v Jaiswal Industries, Neemach, AIR 1989 SC 2113, in the case of Parichhan Mistry (dead) by L.Rs v Acchiabar Mistry, AIR 1997 SC 456 and the decision of Madhya Pradesh High Court in Kishanlal v Hargovind, AIR 1987 MP 134. The above contentions of the learned Counsel for the appellants have hotly been contested by the learned Counsel appearing on behalf of the respondent.

It has been contended by Sri B.N. Ananthanarayana, learned Counsel for the respondent that the respondent was in arrears and the rent note had been executed by the mortgagor. He did not pay the rent. So the decree for the recovery of rent has been passed in execution thereof, the property was put to auction sale and the mortgagee-defendant 1 i.e., the respondent purchased that property with the permission of the Court after having made the deposit of Rs. 17,500/- being the highest bidder and the bid was made by him with the permission of the Court. Even if the sale is in violation of Rule 14 of Order 34 of the Code of Civil Procedure, it was voidable and not void and no suit having been filed to set aside the sale 1st defendant/respondent became the owner of the property and the right of redemption ceased under the rent decree in execution thereof. He submitted that the plaintiff did not raise any objection even in execution proceedings, nor she had filed any suit. The learned Counsel for the respondent in this connection referred to the decision of the Supreme Court in the case of Mrutunjay Pani v Narmada Bala Sasmal, AIR 1961 SC 1353, and urged that in the present case the sale had been effected because of the fault committed by the mortgagor-lessee and when once the property had been sold in execution of the decree and 1st defendant-respondent was allowed to make bid and his bid having been accepted as the highest bid and the sale deed having been executed in favour of the mortgagor, the right of redemption merged with the purchaser i.e., the present mortgagee and so far as the mortgagor is concerned, his right to redeem the property extinguished under the decree. The learned Counsel also made reference to the decision of the Supreme Court in the case of Sachidanand Prasad v Babu Sheo Prasad Singh, AIR 1966 SC 126, the decision of the Allahabad High Court in the case of Deo Narayan Singh v Ganga Prasad, AIR 1915 All. 65, the decision of the Madras High Court in the case of S.A. Panchapagesa Ayyar v R. Rajamani Aiyar, AIR 1947 Mad. 72 and the decision of this Court in the case of Siddappa v S. Mariyappa (dead) by L.Rs and Others, 1994(2) Kar. L.J. 207.

I have applied my mind to the contentions advanced by the learned Counsels for the parties.

Chapter IV of the Transfer of Property Act, 1882 deals with the mortgages of immoveable property and charges. Section 60 contained in Chapter IV of the Transfer of Property Act, 1882 deals with the right of mortgagor to redeem redemption of portion of mortgaged property and Section 67 of the Act provides for right of foreclosure or sale. Section 60 of the Transfer of Property Act, 1882 reads thus:

Right of mortgagor to redeem.-At any time after the principal money has become (due) the mortgagor has a right on payment or tender at a proper time and place of the mortgage money to require the mortgagee (a) to deliver (to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee); (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor and (c) at the cost the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:

Provided that the right conferred by this section has not been extinguished by Act of the parties or by (decree) of a Court.

The expression "Act of the parties" appears to mean and refer to ''the Act of the parties to transaction of mortgage viz., mortgagor and the mortgagee and they are the parties and such acts must be independent of the mortgage transaction and not part and parcel of it. Right to redeem is a right conferred upon the mortgagor by the enactment of which he can only be deprived by means and in the manner indicated for that purpose and by strict compliance of that mode and manner as indicated in the proviso. Thus, right of redemption can be extinguished either by Act of the parties or by (decree) of a Court. The ''decree of the Court'' used in Section 60 of the Transfer of Property Act, 1882 has reference to the decree passed in the suit for redemption or foreclosure extinguishing the right of redemption. Unless and until final decree for redemption or foreclosure is passed, right to redeem is not lost. Right to redeem is not extinguished in case the final decree for redemption or fore-closure omits to make such declaration. In the case of Mhadagonda Ramgonda Patil, their Lordships of the Supreme Court laid down in paragraph 11-A of the said report which reads as under:

"11-A. It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties, or (2) by the decree of Court. We are not concerned with the question of extinguishment of the right of redemption by the Act of the parties. The question is whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished. The decree that is referred to in the proviso to Section 60 of the Transfer of Property Act is a final decree in a suit for foreclosures, as provided in sub-rule (2) of Rule 3 of Order 34 and a final decree in a redemption suit as provided in Order 34, Rule 8(3)(a) of the Code of Civil Procedure. Sub-rule (2) of Rule 3, inter alia provides that where payment in accordance with sub-rule (1) has not been made, the Court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Thus, in a final decree in a suit for foreclosure on the failure of the defendant to pay all amounts due the extinguishment of the right of redemption has to be specifically declared. Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) of sub-rule (3) of Rule 8 of Order 34 of the Code of Civil Procedure. These are the two circumstances - (1) a final decree in a suit for foreclosure under Order 34, Rule 3(2); and (2) a final decree in a suit for redemption under Order 34, Rule 8(3)(a) of the Code of Civil Procedure - when the right of redemption is extinguished".

Their Lordships further laid down in paragraph 13 of the report as under:

"13. In this connection, we may refer to a decision of the Privy Council in Raghunath Singh v Mr. Hansraj Kunwar, AIR 1934 PC 205, where it has been held by their Lordships that the right to redeem is a right conferred upon the mortgagor by enactment of which he can only be deprived by means and in manner enacted for the purpose, and strictly complied with. It is manifestly clear from the said observation that the right of redemption will stand extinguished only under the circumstances as mentioned in the proviso to Section 60 of the Transfer of Property Act, that is to say, (1) by the Act of party, or (2) by a decree of Court. We have already discussed the above circumstances when by a decree of Court the right of redemption is extinguished".

This view has been followed with the approval of their Lordships of the Supreme Court in the case of Maganlal.

In the case of Parichhan Mistry, their Lordships of the Supreme Court observed that "it is true that a right of redemption under a mortgage deed can come to an end, but only in a manner known to law. Such extinguishment of right can take place by contract between the parties, or by a decree of the Court, or by a statutory provision which debars the mortgagors from redeeming the mortgage. The mortgagor''s right of redemption is exercised by the payment, or tender to the mortgagee at the proper time and at the proper place of the mortgage money. When it is extinguished by the act of parties the act must take the shape and observe the formalities which the law prescribes. The expression "Act of parties" refers to some transaction subsequent to the mortgage and standing apart from the mortgage transaction. A usufructuary mortgagee cannot by mere assertion of his own or by a unilateral act on his part convert his position on money of the property as mortgagee into that of an absolute owner. It is no doubt true that the mortgagee would be entitled to purchase the entire equity of redemption from the mortgagor. The mortgagee occupies a peculiar position and therefore the question as to when he purchases at a Court sale is a vexed question, but being in an advantageous position where the mortgagee availing himself of his position gains an advantage he holds such advantage is for the benefit of the mortgagor. It has been so held by this Court in the case of Sidhakamal Nayan Ramanuj Das v Bira Naik, AIR 1954 SC 336 and in the case of Mrutunjay Pani. This being the position of law if for some default in payment of rent a rent decree is obtained and the mortgagee pays off the same even then the mortgage in question is liable to be redeemed at the option of the mortgagor. The mortgagee cannot escape from his obligation by bringing the equity of redemption to sale in execution of a decree on the personal covenant. By virtue of purchase of the property by the mortgagee, in Court sale, no merger takes place between the two rights nor the mortgage stands extinguished".

In the present case, it is a case of usufructuary mortgage leasing out the mortgaged property to the mortgagor and according to 1st defendant the mortgagee continues to be in possession as a tenant under the lease deed. The lease deed of the same date as mortgage dated 9-11-1965. According to defendant 1, the suit property was leased for a rental of Rs. 105/- p.m. and according to him the mortgagor-lessee though he paid rents for six months regularly and thereafter did not pay the rent. The mortgagee filed the suit for the recovery of the arrears of rent and obtained decree in O.S. No. 38 of 1969. He put the decree in execution in Execution Case No. 1342 of 1967. The mortgagee got the house in Court auction on 10-2-1971 and purchased it in Court auction with the permission of the Civil Court, he had offered the bid. The mortgagee obtained sale certificate when the sale was confirmed on 9-6-1971 and received possession after the eviction of the tenant who was none else than the tenant mortgagor. In the above set of circumstances, the question is as to whether the right of redemption which is a statutory right conferred on the mortgagor under the provisions of the Act and which can stand extinguished only in the mode and manner provided or specified in the proviso to Section 60 of the Transfer of Property Act, 1882 whether can be deemed or considered to have extinguished by the reason of purchase of the house which was the subject-matter of the mortgage, in Court auction held in pursuance of decree for the recovery of arrears of rent passed in O.S. No. 38 of 1969. The principle of law which covers such case appears to have been laid down in the case of Mathuralal. In that case, their Lordships laid down in all such cases the leasing back of the property arises because of the mortgagee with possession. But, we find ourselves unable to hold that the mortgagee does not secure to himself any rights under the deed of lease but must proceed on his mortgage. In case the amount secured to him under the deed of lease is not paid. If the security is good and considered to be sufficient by the mortgagee, there is no reason why he should be driven to file the suit on his mortgage when he can file a suit for realisation of the moneys due under the rent note. The position of the creditor is strengthened, whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. If during the continuance of the security the mortgagee wants to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there can be no legal objection to it. Under the provisions of Order 34, Rule 4, he cannot deprive the mortgagor of his right to redeem excepting by proceeding on his mortgage. Although, we express no final opinion on this point, it may be that a mortgagee who secures a decree for payment of arrears of rent cannot put the property to sale for realisation of the amount decreed but there can be no objection to his suing for possession of the rent note entitles him to do so. So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34 of the CPC. In view of the above principle laid down, it appears that the mortgagee, no doubt, can sue the mortgagor tenant to secure the decree for the payment of arrears of rent, but has no right to put the mortgage property to sale for the realisation of the amount decreed, but he could no doubt sue for possession under the rent note or rent agreement as entitled him to sue for possession. In view of the provisions of Order 34, Rule 4 of the Code of Civil Procedure, the mortgagee could not deprive the mortgagor of his right to redeem the property except by taking proceedings on the mortgage itself. That being the position, in my opinion, it cannot be said and held that right of redemption stood extinguished, because of the sale of the property in execution of decree for the recovery of arrears of rent. Ordinarily the mortgagee could not put the property for sale in execution of the decree for rent and purchase it in such a way as to amount clog on others right of redemption. If the property in auction would have been purchased by a third person even then the right of redemption would have continued to exist and enforceable. Further, no person can be allowed to act in a manner otherwise than provided by law.

Order 34, Rule 14 of the Code of Civil Procedure, provides very clearly that where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage and he may institute such suit notwithstanding anything contained in Order 2, Rule 2.

It has been contended here that Order 34, Rule 14 of the CPC is not applicable as sale of the property had been obtained in execution of the decree for the payment of money in satisfaction of a claim arising under the mortgage, but here it had been obtained in execution of the decree for the recovery of arrears of rent. That may be so. But in view of the proviso to Section 60 of the Transfer of Property Act, 1882 as regards the question of extinguishing the mortgagor the right of redemption law specifically provides that right of redemption cannot be extinguished except by act of the parties means joint act of the parties or by decree of the Court i.e., the decree extinguishing the right of redemption and the decrees under which the right of redemption can be extinguished are the decree passed in a suit for redemption or for foreclosure declaring that the right of redemption is extinguished. The decree for the arrears of rent could not be said and cannot be treated or deemed to be the decree extinguishing the right of redemption. Therefore, in my opinion, even if the mortgagee has purchased the property, the right of redemption cannot be said to have extinguished. By virtue of the purchase of the property by the mortgagee in Court sale there cannot be merger between the two rights, nor mortgage stood extinguished and when the mortgage did not stand extinguished the right of redemption cannot be said to have extinguished nor can be extinguished except by act of the parties. Therefore, being in advantageous position where the mortgagee availing himself of his position gains advantage he holds such advantage only for the benefit of the mortgagor. When I so opine, I find support for my view expressed by the Supreme Court in the case of Parichhan Mistry, as well as in Mathuralal''s case, referred to above.

That a perusal of the mortgage deed dated 8-11-1965 reveals that the mortgagee in possession was given the property and right to let out the premises and realise the rent from the tenant and the income from the rental was to be used by mortgagee in place or in lieu of interest on loan amount and no other amount was to be payable to the mortgagee towards interest on loan. The relevant clause in the deed of mortgage dated 8-11-1965, Ex. P. 1 reads as under:

"Melkanda Bhogyada Mobalagige baddi illa. Idhara prathipalakkagi schedule swathina swadeenavannu mattu idannu neevu badigege koduvudhara moolka baruva uthpattiyannu neeve anubhavisuvudhu".

In view of this clause that the rental income from the building mortgaged will be adjustable towards the interest clearly reveals that the mortgagor had no further liability to pay interest except the income from the rental from tenants to whom it is or is to be let out will be had and used by mortgagee in lieu of the interest. Beyond that no interest will be payable by mortgagor to mortgagee. It means that even the rental amount realised or had to be realised was to from part of the money payable under the mortgage deed.

The question arises for consideration is whether the suit filed for realisation of the rental which would have had to be adjusted towards the interest and the decree obtained therefor could at all be executed by sale of the mortgaged property, because in that case the decree for money in the form of arrears of rent which rent has to be adjusted towards the interest can be said to be a money decree not only under the rent note, but under the mortgage deed. Order 34, Rule 14 of the CPC in such case would be attracted. In my opinion, Order 34, Rule 14(1) of the CPC is attracted and the defendants in the present suit cannot and could not escape from the applicability of Order 34, Rule 14 of the CPC which provides that suit for sale is necessary for bringing mortgaged property to sale. (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order 2, Rule 2. Sub-rule (2) of Rule 14 of Order 34 is not relevant.

In this view of the matter, in my opinion, when the provisions of Order 34, Rule 14 of the CPC creates a bar dis-entitling the mortgagee from bringing the mortgaged property to sale in pursuance of a mortgage decree for satisfaction of claim under the money decree arising under the mortgage, except by mode of instituting a suit for sale in enforcement of the mortgage and when the law specifically provides that right of redemption cannot be extinguished except by a decree of the Court, it means a decree for redemption or a decree for foreclosure or by way of decree for sale of the mortgaged property in enforcement of the mortgage. The plaintiffs-appellants could not get the mortgaged property sold in execution of rent decree otherwise than under Order 34, Rule 14(1) of the CPC or otherwise than the specific mode prescribed under Section 60 of the Transfer of Property Act, 1882 read with Order 34 of the CPC. Thus a combined reading of Section 60 of the Transfer of Property Act, 1882 read with Order 34, Rule 14(1) of the CPC and Section 90 of the Indian Trusts Act, 1882 leads me to hold that these provisions effectively prevent the defendant/respondent mortgagee from obstructing the plaintiffs/appellants/mortgagors from enforcing their right of redemption available under Section 60 of the Transfer of Property Act, 1882 and that by virtue of purchase of the property by the defendant/respondent mortgagee cannot creat clog on and has not extinguished the right of redemption of the plaintiffs-mortgagors. It is well-settled principle or law when law provides for specific mode of doing something or for exercise of power or right, the intent of Legislature that other modes of doing that are closed and specially when the provision in specific express negative terms mandates and so directs it is to read a mandatory provision. Thus read in my view the Rule 14 of Order 34 of the CPC per se prohibits the bringing the mortgaged property to sale for satisfying decree for money claimed under mortgage except by instituting the suit for sale in enforcement of mortgage. Thus considered the sale in the present case obtained or got made in execution of pure money decree (for alleged arrears of rent) by the mortgagee being against the mandate of law and its being in breach and violation of prohibition under the law is void and null being in excess of jurisdiction and such the Trial Courts decree that the present suit for redemption to be not maintainable is erroneous in law.

Here, I am of opinion and view that purchase of the mortgaged property by the mortgagee on the basis of the decree obtained on the basis of the rent note whereunder the building alleged to have been let out and as it appears to form part of the mortgage as the mortgagee had been given right to lease out the property and adjust the rental income from the property towards the interest, that the decree obtained against the mortgagor appears to be a devise to block redemption of the property by the mortgagor by reducing their interest to the said property of the tenant. The mortgagee taking the benefit of thereof and availing himself of his position made the gain and advantage in derogation of the mortgagor''s right by getting that property sold under the rent decree and himself purchasing the same. As such, the plaintiffs-appellants have been entitled to the benefit of Section 90 of the Indian Trusts Act, 1882 and the mortgagee must be deemed to have held the property only for the benefit of the mortgagor in whom right of redemption deed vests. Section 90 of the Indian Trusts Act, 1882 reads under:

"90. Advantage gained by qualified owner.-Where a tenant for life, co-owner, mortgagee or other qualified owner of any property by availing himself of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold for the benefit of all persons so interested the advantage so gained but, subject to repayment by such persons of their due share of the expenses property incurred and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage".

When, I so opine, I find support for my view from the decision of the Madhya Pradesh High Court as well in the case of Kishanlal.

As regards the decision in the case of Sachidanand Prasad, relied on by the learned Counsel for the respondent the same is distinguishable thereunder. The mortgaged property, occupancy raiyati lands was part of a larger holding. The rent of that land had to be paid to the landlord, rent of the entire holding was Rs. 155-04-0. In that case, under the mortgage deed it was provided that the mortgagee would pay Rs. 08-10-9 out of the total rent and the balance rent would be payable by the mortgagors. Their Lordships opined that the rent of the land had to be paid to the landlord even during the course of the mortgage, by the mortgagor and mortgagee and the mortgagor defaulted in payment of rent payable by them and the effective cause of sale was default by mortgagor alone. In Sachidanand Prasad''s case, the landlord whom rental was paid was a person different from the person other than the mortgagee and in that case the question of default on either i.e., on the part of the mortgagor and the mortgagee might be relevant, but here in the present case the owner of the property was mortgagor. Mortgagee was given possession of the property with stipulation that he may let out the property and from the tenants in the building he will realise rent and the income from the rent would be used in lieu of and adjusted towards the interest. So here the case was one where rent note or rent deed forms part of the subject-matter of mortgage, in the sense that rental income was in lieu of and adjusted towards the interest. The mortgagee, no doubt, could realise the rent even from the plaintiffs but it being and arising under the mortgage deed the mortgaged property for realisation thereof could not be put to sale in execution of that decree, but the mortgagee making use of his position adopted it as a devise to deprive the plaintiffs of a right of redemption by getting the property but to sale otherwise than under Order 34, Rule 14 of the CPC and taking advantage of his position purchased the property. In Sachidanand Prasad''s case, the mortgagee might not have availed any advantage by availing himself of his position, but here in the present case the mortgagee did. Therefore, the decision in Sachidanand Prasad''s case is of no help and not applicable to the facts of the present case.

@BODY-MORE = 16. The second proposition that has been laid down in the case of Mrutunjay Pani, where the mortgagee purchased equity of redemption in execution of the mortgage decree with leave of the Court or in execution of mortgage or money decree obtained by a third party, then in that case equity of mortgage may have extinguished, here is not so. Here, he has not purchased in execution of the mortgage decree or money decree obtained by a third party. Here the defendant has purchased the property in relation to money decree for rental obtained by the mortgagee himself. So, the second proposition will not apply and right of equity of redemption cannot said to have been extinguished. In my opinion, the decision in Mrutunjay Pani''s case, referred by the learned Counsel for the respondent is of no assistance to him, instead this leads me to hold that equity of redemption was not extinguished and the plaintiffs/appellants were entitled to a decree for redemption. That the decision of this Court in Siddappa''s case, referred to by the learned Counsel for the respondent is not a case on the point involved before me in the present case with reference to Section 60 of the Transfer of Property Act and Order 34, Rule 14 of the Code. It only lays down that when there is a specific provision and a general provision in regard to a subject and there is possibility of conflict, the special law is to prevail and the general law should make room for special law to operate.

Thus, in my opinion, the Trial Court erred in law in taking the view that the right of redemption extinguished and the mortgagor ceased to have any right or redemption. The finding of the Trial Court that the mortgagor''s right of redemption was lost, because of the sale of the property in execution of the rent decree and its purchase by the mortgagee is thus erroneous in law. That the judgment and decree of the Court below are liable to be set aside and are hereby set aside. It has to be declared and held that the plaintiffs'' right of equity of redemption or right of redemption subsisted even on the date of the suit and the plaintiffs were entitled to a decree for redemption. No doubt, the mortgagee has been holding the property as mortgagee and subject to repayment by the mortgagor of their shares of expenses incurred by the mortgagee in the properties.

The Regular First Appeal, as such, is hereby allowed.

The plaintiffs'' suit for redemption is decreed holding the sale in favour of respondent-defendant 1 in Execution Case No. 1342 of 1969 to be illegal, null and void.

Let a preliminary decree be prepared or drawn and that account be taken of what is due to the defendant on the date of the decree for the principal sum a interest on mortgage and for costs, as well as for charges and expenses that the defendant has incurred in the purchase of the suit schedule property with interest at the rate of 6% p.a. thereon after adjusting the amount that has already been paid by plaintiff-appellant or deposited before that date.

@BODY-MORE = 19. The plaintiffs/appellants shall pay if any sum is found payable on account of the sums, if any, incurred by the defendant in securing the mortgaged property. The amount so found due shall be paid after accounting is completely done, and adjustment for the amount, if any, paid or deposited, is done within a period of six months from the date on which the Trial Court confirms and counter signs the accounts and defendant shall deliver to the plaintiffs/appellants or to such person as plaintiffs appoint, the documents in his possession and power relating to the mortgaged property and the defendant/respondent shall retransfer the property to the plaintiffs i.e., appellants at his cost and free from all encumbrances created by the defendant or any person under him and he shall put the plaintiffs in possession, if the plaintiffs are not in possession at present and if the plaintiffs are in possession of the suit schedule property, his possession shall not be disturbed.

The suit is decreed with costs of both the Courts.