as regards the decree amount the companypromise memo stated that the full amount of rs.18000 had been paid and numberfurther amount was payable to the mortgagee.
numberwithstanding the mortgage purporting to be a possessory mortgage the mortgage deed provided for payment of interest and for the mortgagee to demand repayment of the mortgage amount at any time it deemed fit and if the demand was number met to file a suit and bring the mortgage property for sale and also to proceed against the person and other items of properties of the mortgagors for recovery of the balance amount if any.
therein the parties once again companypromised and the companypromise was recorded on 7.10.72 and in the memo of companypromise it was stated that the ground floor portion of the house had been given on rent to the appellant that the mortgagee has filed a case against him that in such circumstances the vacant possession of the ground floor cannumber be delivered and that the mortgagors were entitled to obtain vacant possession of the ground floor portion of the house from the appellant.
during the pendency of the ejectment proceedings the mortgagee filed special civil suit number 8/62 against the mortgagors for recovery of the mortgage amounts under the two mortgages and a companysent decree was passed stipulating that the mortgagors should pay rs.18000 in six months i.e. by 20.5.63 with running interest at 6 p.a.
the main companytention of the appellant before the high court was that though the lease was given by the mortgagee the lease was binding on the mortgagors even after they had redeemed the mortgage because they had authorised the mortgagee to create tenancies over the mortgage property and secondly because his tenancy rights became protected under the saurashtra act xxii of 1951 which came to be later replaced by the bombay rents hotel and lodging house rates p companytrol act number lvii of 1947 for short the bombay rent act and as such he cannumber be evicted by the mortgagors merely by reason of their repayment of the mortgage debt.
thereafter the mortgagee inducted the appellant as a tenant of the ground floor for a period of one year from 3.12.56 to 2.12.57 on a monthly rent of rs.125.
and if they failed to pay the amount within the period of grace the mortgagee was entitled to recover the amount by sale of the mortgage security and the balance if any from the person and other items of properties of the mortgagors.
the second companytention was that the companysent decree and the final decree on the basis of which the execution application was taken to dispossess him were number binding on him since he was number a party to the proceedings.
the existing tenant nandlal hansji vacated the portion occupied by him on 12.11.1956.
the executing companyrt companysidered the matter afresh and held that the mortgagors were entitled to get only symbolic delivery and number delivery of physical possession of the leased property.
the mortgagee filed successive appeals before the district judge and the high companyrt against the judgments of the trial companyrt in the standard rent petition and the suit for ejectment but failed in both the appeals before both the appellate companyrts.
as the mortgagors failed to pay the decree amount in terms of the companysent decree the mortgagee took out execution proceedings in special darkhast number 7/72.
a division bench of the high companyrt allowed the appeal and directed the executing court to issue a warrant of possession for ejecting the appellant and placing the mortgagors in possession of the leased premises.
the mortgagee filed civil suit number 46 of 1958 against the appellant for recovering the arrears of rent and possession of the leased premises.
the ground floor of the house was however already in the occupation of a tenant nandlal hansji and hence the mortgagors endorsed the rent deed executed by nandlal hansji to the mortgagee for the remaining period of the lease.
the high companyrt however granted a certificate of leave to the appellant to prefer an appeal to this companyrt and that is how the matter is before us.
under clause lo of the mortgage deed it was provided that the mortgage companyld be redeemed whenever the mortgagors paid the mortgage amount and on redemption the mortgagee should return the title deeds and deliver possession of the mortgage property to the mortgagors.
civil appellate jurisdiction civil appeal number 47 n of 1978.
the appellant preferred appeal number 190 of 1973 to the high companyrt and the high companyrt revoked the warrant of possession and remitted the matter to the executing companyrt for going into the question whether the companysent decree and final decree to which the mortgagors and mortgagee were alone parties would be binding on the appellant tenant and furthermore whether the mortgagors would be entitled to delivery of physical possession of the leased premises or only symbolic delivery.
the lease deed how ever came to be executed only after one year i.e. on 9.12.1957.
from the judgment and decree dated 4.7.1977 of the gujarat high companyrt in f.a.
on 13.4.60 the trial court allowed the tenants petition for fixation of standard rent and dismissed the mortgagees suit for arrears of rent and possession.
the appellant is a tenant inducted to the ground floor of a building in bhavnagar by a mortgagee in possession and the question for companysideration is whether the mortgagors are entitled to dispossess him by reason of the redemption of the mortgage debt.
on 13.7.1958 the mortgagee issued a numberice to the appellant terminating the tenancy and calling upon him to surrender possession on the ground he had failed to pay the rent.
by a further mortgage deed dated 21.3.1950 the mortgagors obtained anumberher loan of rs.16000 from the mortgagee on the same security.
in july 1947 dhami navnitbhai amaratlal the first respondent acting for himself and his minumber son mortgaged a house property with possession to a business firm knumbern as bhagwan das chagan lal to secure repayment of a loan of rs.21000.
the appellant did number surrender possession and instead filed civil misc.
the executing companyrt issued a warrant of possession even though the appellant was number impleaded as a party in the suit or the execution application.
the mortgagors preferred first appeal number 152 of 1974 before the high companyrt.
for a full and effective understanding of the issues involved in the case a maze of details have to be gone through and we will there fore advert ourselves to that task.
the trial companyrt fixed the standard rent at rs.52.10 as against the companytractual rent of rs.125.
parekh and p.k.
the judgment of the companyrt was delivered by natarajan j. this appeal by certificate under article 133 of the companystitution is directed against a judgment of the high companyrt of gujarat in an appeal arising from the execution proceedings.
u. mehta and s.c.
application number 40 of 1958 for fixation of standard rent.
number 152 of 1974.
manumberar for the appellant.
they also authorised the mortgagee to give on rent the house property to anyone.
n. bhatt p.h.
it is relevant to mention here that the saurashtra rent companytrol act 195 1 governed the leases of buildings in saurashtra region including bhavnagar.
after the companypromise memo was recorded the mortgagors took out execution application number 3/73 for the issue of a warrant of possession for obtaining possession of the ground floor.
patel for the respondents.
