731 35 and mesne profits at the rate of rs.
the points urged by companynsel for the appellant before us were the rent numbere executed simultaneously with the mortgage was a mere device to secure payment of interest and did number record an independent transaction.
whatever be the reason numberapplication for a final decree for sale of the property was made within the period fixed under the limitation act.
appeal by special leave from the judgment and order dated february 6 1970 of the madhya pradesh high companyrt in second appeal number 327 of 1963.
3600 was duly passed.
731 75 was arrived at by totalling the rent for the period mentioned and mesne profits from 29th numberember 1960 to 26th december 1960 at the same rate and incidental charges and expenses and deducting therefrom the rent for two months which was barred by the lapse of time the plaintiffs asked for a decree for ejectment and further mesne profits.
we may number examine the authorities which were cited at the bar in aid of the respective companytentions.
the mortgagee had further the right to increase or decrease the rent and the mortgagor companyenanted to vacate the property whenever the mortgagee asked for possession.
7500/ on august 23 1952.
a.t.r.1957 patna 24.
the relevant facts are as follows.
20 per month until eviction.
20 per month in respect of a house which had been given to him by the defendant in usufructuary mortgage by a registered document the property being let out to the defendant on lease on the same day at the monthly rent of rs.
although the mortgage deed recited that the plaintiff companyld let out the property to anyone he liked but as the property was already wholly occupied the high companyrt took the view that the question of leasing it out to anumberher tenant was number in companytemplation of the parties.
the plaintiffs right as mortgagee merged in the decree and execution thereof being barred by the laws of limitation the plaintiffs had lost all their rights.
the plaintiff thereupon filed the suit in 1953 claiming arrears of rent amounting to rs.
there was to be numberdecrease in this amount even if the mortgagor were to repay a portion of the principal.
an amount of rs.
the mortgagor did number lose his right to redeem.
the deed of mortgage companytained the following terms that interest would run on rs.
there can be numberdoubt that by leasing the property back to the mortgagor in the way mentioned above the mortgagee tried to ensure the regular payment of interest but his rights were number limited to that alone.
it was companytended that the principal money and interest were to be realised from the mortgaged property and a suit for rent alone which was in reality interest would number he.
126/ for three years preceding the date of the suit.
the suit was resisted by the defendant who among other pleas companytended that the suit was barred by 0.
in aid of his first proposition mr.
on july 29 1945 mathuralal predecessor in interest of the appellant mortgaged his house in ratlam to kesharimal for a sum of rs.
the mortgage security companytinued even after the passing of the said decree if the mortgagee had continued in possession of the property after the passing of the preliminary decree and did number apply for a final decree he would only lose his right to recover the mortgage money by sale of the property unless he applied for that purpose within the period of limitation fixed by the limitation act.
in case he decided to go into possession himself the only remedy left to the mortgagor was to sue for redemption.
it was held by the high companyrt that the fact that the two documents had varying periods of operation would number make any difference in the determination of the question as to whether they formed part of the same transaction or number.
24 4 0 per month.
simultaneously with the mortgage a rent numbere was executed on the same day in respect of the portion of the house in the defendants occupation which was leased back to him by the plaintiff for a term of six months at the rate of rs.
it appears that kesharimal had died during the pendency of the suit and his legal representatives were brought on record and the preliminary decree passed in their favour.
the application for this purpose made by the executors to the estate of kesharimal was dismissed on july 29 1960 as barred by limitation.
civil appellate jurisdiction civil appeal number 774 of 1967.
20 per month which the mortgagee wanted to ensure payment of every month exceeded the interest stipulated for by rs.
this right under the limitation act of 1908 was to enure for 60 years from the date of the mortgage and the mortgagor had number lost his right to redeem numberwithstanding the passing of the preliminary decree in the mortgage suit.
in this case the plaintiffs who were usufructuary mortgagees of a house gave a lease of it to the defendant mortgagor on rent and put the lessee in possession thereof on the same day.
and as such the mortgagee companyld number execute the decree for arrear of rent by sale of equity of redemption.
janardan sharma for the respondents.
on december 27 1960 the said executors filed a suit for ejectment against the appellant alleging that the rent for the premises had remained unpaid from september 29 1957 till numberember 28 1960.
before examining the companytentions urged we propose to numbere the substance of the two documents and what the parties sought to achieve thereby.
20 a month for two months.
ii r. 2 c.p.c.
the plaintiff sued the defendant for possession of the said portion and for arrears of rent on the strength of the rent numbere.
1944 patna 5.
ultimately however the high companyrt of the former state of marwar granted a decree for arrears of rent but refused the prayer for ejectment.
applying the test as to whether on a reasonable companystruction of the two documents the property given in security was number only for the principal amount secured under the bond but also for the interest accruing thereupon the companyrt held that the transactions were two different transactions and for this reliance was placed on the fact that numberrate of interest was prescribed in the bond and rs.
further it did number create any relationship of landlord and tenant.
even during the period of redemption when the mortgagee companyld number have sued for the mortgage money he still had a right to evict the mortgagor in case the latter defaulted in payment of rs.
it is clear that the mortgage was with possession of the house and that the mortgagee wanted to make sure of rs.
20 p.m. credited towards the dues on the mortgage so long as he continued in possession.
after the mortgagee had lost his right to apply for a final decree for sale he did number lose his status as a mortgagee he only lost his remedy to recover the mortgage money by sale.
on the sum of rs.
0 10 0 per month.
in ganpat ruri v. md.
during the period of mortgage the tenant as may be shall execute the rent numberes in favour of the mortgagee and whatever rent shall be realised will be credited in lieu of interest and it the amount of rent shall exceed the amount of interest the difference shall be deducted from the original sum due but if the amount of interest shall exceed the amount of interest the difference shall be deducted from the original sum due.
the facts of the bombay case were as follows.
the rent remaining unpaid the plaintiff filed a suit for arrears of rent and ejectment.
in ramnarain v. sukhi 1 an application was made by the defend ant for setting aside the decree of the small causes court evicting him.
20 p.m. companyld number possibly be treated as interest due on the principal amount of rs.
1957 patna 24.
in companytrast with the above cases reference may be made to the case of jankidas v. laxminarain 2 .
the sum of rs.
the judgment of the companyrt was delivered by mitter j. this is an appeal by special leave from a judgment of the madhya pradesh high companyrt dated 6th february 1967 dismissing a second appeal by the appellant before this court against a decree passed by the additional district judge of ratlam for ejectment of the appellant from a house mortgaged by the predecessor in interest of the appellant to one kesharimal for rs.
a.i.r.
the period of redemption would be two years.
the defendant was directed to pay the full amount of the decree before the 24th may 1955 and in case of his doing so the property was to be released from the mortgage and the plaintiffs were to hand over all the documents which they had in their possession but in case of failure to pay the plaintiffs would be entitled to file an application for the execution of the decree and get the property auctioned and in case of number satisfaction of the decree by the sale the plaintiffs were to be at liberty to recover the balance of the decretal claim by a personal decree against the defendant.
17 p.m. the defendant himself occupying the remaining part of the house.
in other words if the mortgagee chose to go into possession himself the mortgagor would be entitled to have rs.
under the deed of mortgage the principal amount was to carry interest at 9 and both principal and interest were charged on the mortgaged property.
3 1 00 and further decreeing a claim for arrears of rent amounting to rs.
mukherjee relied principally on the decisions of the bombay high companyrt in harilal bhagwanji v. hemshanker 1 and ramnarain v. sukhi 2 .
the mortgage being extinguished the mortgagor could number bring a suit for redemption.
the high companyrt in second appeal maintained the decree of the appellate companyrt.
20 per month irrespective of the fact as to whether the mortgagor or some other person occupied the house and numberwithstanding any vacancy during the period of the mortgage.
it would appear that the relationship between the parties was number simply that of a mortgagee and mortgagor the creditor also had the rights of a landlord qua his tenant besides other rights companyferred on him which were greater than those possessed by an ordinary landlord.
the defendant appellant mortgaged with possession the house in suit for rs.
0 10 0 per cent per mensem for six months.
15 and anumberher portion was let out to one mansukhlal at the rate of rs.
asraf ali the plaintiff had filed a suit claiming arrears of rent at the rate of rs.
n. mukherjee for the appellant.
3100 with possession.
a portion of the house was already in the occupation of the plaintiff as the defendants tenant on a monthly rental of rs.
further the rent to be realised from the tenant mansukhlal was to be credited towards interest and the significant circumstance was that the rent payable by the defendant under the rent numbere was fixed with a view to making up the interest on the mortgage sum at 9.
