The trial Judge rejected the appellants argument that the mortgage had been extinguished, and held that the equity of redemption still vested in the respondents.
They urged that the mortgage was extinguished and the respondents were therefore, number entitled to claim adjustment of the debt, and they also companytended that the application made by the respondents was barred by time.
According to the respondents, the decree directed them to pay Rs.
Appeal by special leave from the judgment and decree dated October 31, 1960 of the Bombay High Court in Civil Revision Application No.
The High Court has differed from the District Court and has taken the view that the decree did number determine the respondents right to redeem the mortgage.
The respondents also pleaded that the decree which was passed in the said suit was in the nature of a preliminary decree, and though the appellants were entitled to apply for making the said decree final after the expiration of the six months period prescribed by it, they took numbersuch action and the mortgage debt, therefore, remains unpaid arid the equity of redemption vesting in the respondents is unextinguished.
102 of 1932 33 .
3,677 12 6 within six months from the date on which it was drawn but the said money had number been paid even so, the relationship between the parties companytinued to be that of the mortgagors and the mortgagees, and so, they were entitled to claim adjustment of the debt in question.
On that view of the matter, the High Court has set aside the orders passed by the companyrts below and has remanded the proceedings to the trial Court with a direction that the application made by the respondents for adjustment of the debt should be tried in accordance with law.
He, however, found that the respondents application for adjustment of the debt was barred by time.
After these findings were returned, the revision application was argued before the High Court and the main point which was urged before the High Court at that state was whether the respondents right to redeem the mortgage had been extinguished by the decree passed in civil suit No.
28 of 1908 09 .
In 1908, the respondents predecessoes in interest sued on this mortgage in the Court of the Sub Judge at Kapil Civil Suit No.
102 of 1932 33.
It appears that the State of Oundh merged in the erstwhile State of Bombay and thereafter the Act was extended to the said State.
It also agreed with the view taken by the trial Court that the respondents application was barrey by limitation.
At the hearing of these proceedings the appellants raised several companytentions.
In the result, the appeal preferred by the respondents was dismissed.
That is how the respondents companymenced the present proceedings under the provisions of the Act thus extender to the State of Oundh.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The matter then went in appeal to the District Court, North Satara.
The appellants also made an application for the adjustment of the debt due under the decree in Suit No.
For the purpose of hearing these two applications were companysolidated by the trial Court.
In regard to the finding recorded by the companyrts below that the respondents application was barred by time, the High Court took the view that the question as to whether the application is within sixty years from the expiry of the period prescribed in the mortgae deed for repayment is entirely irrelevant inasmuch as the said application is substantially for the adjustment of debt under the decree passed in suit No.
This suit was, however, withdrawn with liberty to file a fresh suit.
On September 2, 1936, a decree came to be passed in the said suit.
That, in brief, is the nature of the claim made by the Respondents in the application made by them under the Act for adjustment of their debt due to the appellants.
In the result, the respondents failed and their application was dismissed.
It is against this order that the appellants have companye to this Court by special leave.
102 of 1932 33.
P. Sinha and M. I. Khowja, for the appellants.
The respondents Maruti Hari Jadhav and two others moved the B.A.D.R. Court at Karad on May 26, 1949, for adjustment of the debt alleged to be due from them to the appellants, Pandurang.
B. Agarwala and A. G. Patraparkhi, for the respondents.
Dhondi Chougule others.
2131 of 1957.
Then followed another suit by the respondents in the same Court for redemption of the mortage No.
The High Court had also directed that the issue as to who was, in possession of the property at the relevant time, should be tried and the finding returned by the trial Court was that the appellants were in possession of the mortgaged property number as mortgaeges, but as owners from 2nd March, 1937.
28 of 1939 hereinafter called the Act .
By this mortgage, six agricultural lands situated atKapil in the former State of Oundh had been mortgaged to the portage with possession for a sum of Rs.
The Judgment of the Court was delivered by Gajendragadkar, C.J. This appeal by special leave arises out of proceedings initiated under the provisions of the Bombay Agricultural Debtors Relief Act, 1939 No.
Their case was that the debt in question was due under a mortgage deed executed by their gand father in favour of the grand father of the appellants on August 29, 1881.
163 of 1963.
