The said judgment is under challenge in this appeal filed by the successors of the original plaintiff assignee mortgagee creditor .
Commissioner under section 13 3 of the Act operates as a final decree for foreclosure, and therefore, they were entitled to possession of the mortgage properties.
Thus he companymitted two companysecutive defaults in payment of instalments.
Sundersa Gulabsa Jain filed two Regular Civil Suits for recovery of the mortgage dues and in the alternative for foreclosure of the right of redemption.
The Executing Court accepted the execution petition filed by the creditors holding that the certificate operated as a final decree for foreclosure.
The said order was companyfirmed by the Extra Assistant Judge, Amravati in Civil Appeal No.
They companytended that the final decree as referred to in section 13 3 of the Act should be treated as a final decree for sale and number a final decree for foreclosure of the mortgaged property.
The Court directed issuance of the warrant of delivery of possession.
The creditor plaintiff filed an application under section 13 3 of the Act on 31.8.1949 for a certificate as provided in the said section.
Thereafter, on 17.1.1967 the creditors filed an execution petition with the prayer for delivery of possession of the mortgage properties from the debtors on the ground that the certificate issued by the Dy.
On account of a temporary legislation titled Central Provinces Berar Relief of Agriculturist Debtors Temporary measures Act, 1949 No.
On the application made by the defendant mortgagor a scheme for repayment of the loan was framed under the Act and the mortgage dues were made payable by instalments falling due on 1st March every year as per the order of the Debt Relief Court.
The mortgages were described as Lahan Gahan mortgages During the pendency of the suits the Central Provinces and Berar Relief of Indebtedness Act, 1939 C.P. Berar Act No.
Consequentially the objections filed by the debtors were rejected.
The respondents in the appeal are the successors of the original defendant mortgager debtor .
XIV of 1939 for short the Act came into force and the suits were transferred to the Debt Relief Court established under the said Act.
XXIV of 1949 enforced under the provisions of the Act whereby the date of instalment was postponed by one year from 1.3.1949 to 1.3.1950.
Consequently, the second appeal was allowed, the orders of the trial companyrt and the appellate companyrt were set aside and the warrant of delivery of possession was quashed.
In the meantime the debtor deposited the entire mortgage dues in the Court on 30.5.1964.
Finally, the Deputy Commissioner ordered issuance of the certificate under section 13 3 of the Act on 24.9.1962 which was companyfirmed by the High Court in Special Civil Application No.716 of 1964 by order dated 4th April, 1966.
Feeling aggrieved by the said order the judgment debtors preferred second appeal No.277 of 1971 in the Bombay High Court which was decided in their favour vide judgment dated 2.2.1983 in which the learned single Judge of the High Court held, inter alia, that the effect of the certificate under section 13 3 of the Act was that it gave to the creditors only the right to recover the entire amount due in one lump sum as if it were a final decree for recovery of money and it companyld number operate as a final decree for foreclosure.
The next instalment was due on 1.3.1949.
The execution petition original darkhast was sent to the trial companyrt for disposal in accordance with the law.
In the said proceeding judgment debtors filed an application under section 47 of the Code of Civil Procedure read with section 151 of the Code companytending inter alia, that possession of the mortgaged property should number be delivered to the creditors.
55 of 1969.
The instalment which was due on 1.3.1950 was also number paid by the original mortgagor.
The instalment which fell due on 1.3.1948 was number paid by the mortgagor.
P. Mohapatra,J. One Sheikh Ibrahim executed two mortgage deeds on 30.4.1923 and 9.4.1924 in respect of 4.00 acres and 8.00 acres of his land respectively in favour of Sunderbai wife of Latulal.
On 11.4.1939 the said Sunderbai transferred her rights as a mortgagee to Sundersa Gulabsa Jain.
