Gani Rasul Attar & Ors. v. Shankar Maruti Mahadik

Shri P. B. Gujar, for the Petitioners ... Respondents CORAM: R. M. SAVANT, J. DATED : 9th July, 2012 P.C. :

The above Petition takes exception to the order dated 6th December, 2012 passed by the learned Civil Judge, Junior Division, Vaduj, by which order the application Exh. 37 filed by the Petitioners herein i.e. the Judgment Debtors to direct the Decree Holders to withdraw the amount deposited by them on 19th November, 1999, came to be rejected.

There is a decree passed against the predecessors of the Petitioners herein to the following effect: “2. It is hereby directed that Plaintiff to deposit an amount of Rs.1500/- in the court and costs as mentioned in Rule 7 of O.34 of C.P.C. On or before 15/9/1992 and jpc/- 1 of 4 after the deposit in the court, then Defendant shall deliver to the plaintiff all the documents relating to the mortgage property and recover mortgage property, which is more particularly described in Para No. 2(5) of the Plaint, to the plaintiff at his own costs and shall put Plaintiff into possession of the mortgage property i.e. suit property described in para No. 2 (E) of the Plaint.

If the payment is not made within stipulated period, then Plaintiff is debarred from all rights to redeem Suit property and Defendant is entitled to file Application as per O.34R.7(1)(c)(ii)(b) of C.P.C.

3. Against the said decree, the Petitioners, it seems had filed the Appeal, in which Appeal the Decree Holders had filed an Application for depositing the said amount of Rs.1500/-. The lower Appellate Court had rejected the said Application. The Appeal thereafter filed by the Petitioners herein came to be dismissed by the lower Appellate court. Therefore, the decree of redemption of mortgage passed by the trial Court was confirmed. The said decree was put in execution in the executing Court on 19th November, 1999 and on the same day, the Decree Holders filed an application for depositing the amount of Rs.1500/-. Thereafter the Petitioners filed the instant application on 18th August, 2004 i.e. much after the said amount jpc/- 2 of 4 was deposited by the Decree Holders. The said application has been deiced by executing Court by the impugned order. The executing Court, whilst rejecting the said application, has held that in the teeth of the fact that the transaction of mortgage has been held to be valid by the lower Appellate Court, the mortgagor would be entitled to redeem the mortgage. The executing Court has held that the said mortgage, being in the nature of usufructuary mortgage, the mortgagee has no right to apply for foreclosure or sale. The executing Court had referred to the judgment of the apex Court in the matter of Achaldas Durgoji Oswal Vs. Ramvilas Gangabisan Heda, reported in A.I.R. 2008 S.C. 1017 . The trial Court also observed that in view of the fact that the final decree is yet to be passed, the decree holders were entitled to deposit the said amount.

It is sought to be contended by the leaned counsel appearing for the Petitioner Shri Gujar that once the lower Appellate court having refused permission to the Decree Holders to deposit the amount, the executing Court i.e. the learned Civil Judge, Junior Division could not have allowed the decree holders to deposit the amount in question. jpc/- 3 of 4

As indicated above, the transaction in question has been held to be usufructuary mortgage by the Courts below. Having regard to the nature of the transaction, the mortgagor would undoubtedly have a right to redeem the mortgage, more so when there is a decree in his favour. In that view of the matter, no case for interference is made out. The Writ Petition is accordingly dismissed. (R. M. SAVANT, J.) jpc/- 4 of 4