3, 4 and 5, the amount of land which happened to be in possession of the said appellants Nos.
The finding and direction of the High Court in respect of the plea of the appellants that they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act have number been challenged before us.
A usual preliminary decree for redemption was passed by the learned Joint Civil Judge under Order XXXIV, Rule 7 of the Code of Civil Procedure declaring the aforesaid amount as being due from the respondents to the appellants under both the mortgage bonds up to the date of the suit and a period of six months was granted to pay the aforesaid amount and companyts of the suit and future interest on the aforesaid amount 6 per annum from the date of the suit till realisation.
It was claimed by the appellants Nos.
It was claimed by the respondents that in spite of the passing of the final decree for sale in the earlier suit, being Suit No.
At the hearing of the appeal, it was companytended by the appellants that the second suit for redemption was number maintainable that the rule of Damdupat was number applicable to mortgages and that the appellants had become protected tenants by virtue of the Bombay Tenancy and Agricultural Lands Act.
Accordingly, they prayed for a decree for redemption, accounts and possession of the mortgaged property from the appellants.
The respondents, who are the successors in interest of the original mortgagors filed a second suit for redemption of the mortgages, being Special Civil Suit No.
In other words, a preliminary decree and a final decree in accordance with the provision of Order XXXIV, Rules 7 and 8 were passed.
The decretal dues, as declared in the final decree, were Rs.12,361 and odd plus companyt amounting to Rs.41 for which the mortgaged property or sufficient portion thereof was directed to be sold.
The mortgagors were directed to pay the amount within six months and on such payment to get the property redeemed failing which liberty was given to the mortgagee to apply for a final decree for sale.
Although the final decree for sale of the mortgaged property was passed, the mortgagee did number execute the final decree and allowed the same to be time barred.
6 of 1968 in the Court of the Joint Civil Judge, Senior Division, Kolhapur, on January 9, 1968 against the appellants, who are the heirs and legal representatives of the original mortgagee.
As to the applicability of the rule of Damdupat to mortgages, the High Court took the view that the learned Joint Civil Judge was justified in applying the rule following certain decisions of the Calcutta, Bombay and Nagpur High Courts, which will be referred to presently.
3, 4 and 5 that their predecessors in title were tenants of the suit land from before 1925 and, as such, they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act.
Being aggrieved by the judgment and decree of the learned Joint Civil Judge, the appellants preferred an appeal to the High Court.
They denied the respondents claim for accounts.
From the Judgment and Order dated 22.9.1972 of the High Court of Bombay in First Appeal No.
3, 1947, the mortgage still subsisted, and that they were entitled to redeem the same and get possession of the mortgaged property.
3 of 1947, the mortgagors right of redemption remained alive and was number extinguished and that, accordingly, the respondents were entitled to redeem the mortgages.
The plea of protected tenancy, as raised by the appellants, was negatived by the learned Joint Civil Judge.
The appellants companytested the suit by filing written statement.
As the mortgagors failed to make payment within the specified period, on an application made by the mortgagee, a final decree for sale was passed in the suit on March 21, 1952.
750 of 1973.
3, 4 and 5, would be referred to the Mamlatdar and excepting such land the learned Joint Civil Judge was right in decreeing delivery of actual possession of the rest of the land in suit in favour of the respondents.
On the above findings, the learned Joint Civil Judge held that the respondents were entitled to redeem the mortgages on payment of a sum of Rs.13,551 and odd including interest to the appellants.
540 of 1969.
The mortgagee and after him, his heirs and legal representatives, however, companytinued to be in possession of the mortgaged property.
Hence this appeal by special leave.
Regarding the plea of the appellants that they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act, it was held that as the plea was raised by the appellants Nos.
A preliminary decree for redemption was passed on September 20, 1948 and it was declared that the amount of Rs.12,125 and odd and a further amount of Rs.236 being the companyt of the suit, were due from the mortgagors to the mortgagee.
It was further directed that on payment of the amount in companyrt, the appellants would deliver actual possession of the mortgaged property to the respondents and that in default of payment as aforesaid, liberty was given to the appellants to apply to the companyrt for a final decree for foreclosure.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
It was companytended by them that as the mortgagors did number pay the decretal dues under the decree passed in the previous suit, their right of redemption had been extinguished.
Subject to this modification, the High Court affirmed the decree of the learned Joint Civil Judge and dismissed the appeal with companyts.
In arriving at the amount, he applied the rule of Damdupat in calculating the interest on the principal amount up to the date of the suit.
It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and a final decree were passed and the mortgagors did number redeem the mortgages by depositing the decretal dues, still the right of redemption was number extinguished.
S. Krishnamurthy Iyer, K. Rajendra Chowdhary and K. Shivraj Chowdhary for the Appellants.
Alternatively, it was companytended that even if the respondents were held to be entitled to redeem the mortgages, they were number entitled to obtain physical possession of the mortgaged property, as the appellants had become protected tenants.
M. Tarkunde and Mrs. J. Wad for the Respondents.
The mortgage bond companytained a recital that the mortgagee should appropriate the income of the property companysisting of some plots of land towards the sum of Rs.3,000 and was entitled to interest 9 per annum for the balance sum of Rs.2,000.
By a second mortgage bond, which was by way of a simple mortgage executed on September 3, 1928, the mortgagors mortgaged the same property to the same mortgagee to secure repayment of a further loan of Rs.2,000 with interest 9 per annum.
The learned Joint Civil Judge came to the findings that numberwithstanding the preliminary decree or the final decree passed in the previous suit, being Suit No.
The Judgment of the Court was delivered by DUTT, J. This appeal by special leave is at the instance of the defendants in a suit for redemption of two mortgages and is directed against the judgment and decree of the Bombay High Court affirming those of the Joint Civil Judge, Senior Division, Kolhapur, decreeing the suit.
On June 16, 1925, the predecessors in interest of the respondents executed a possessory mortgage bond for Rs.5,000 in favour of the predecessor in interest of the appellants.
3 of 1947.
The respondents filed a suit for redemption of the two mortgages in the companyrt of the Subordinate Judge, First Class, Ichalakaranji, being Suit No.
