1949 (5) TMI 18 - Other - Indian Laws

Summary

Issues Involved:
1. Whether the mortgagor's right to redeem was extinguished under Order XXIII, Rule 1 of the Code of Civil Procedure.
2. Whether the right of redemption was extinguished by the act of parties under the compromise of 7th November, 1932.
3. Whether the compromise should be enforced under Section 53-A of the Transfer of Property Act.
4. Whether the mortgagees are entitled to possession, rent, and mesne profits from the lessees.

Detailed Analysis:

1. Whether the mortgagor's right to redeem was extinguished under Order XXIII, Rule 1 of the Code of Civil Procedure:
The High Court initially ruled that the mortgagor's right to redeem was extinguished because the previous suit filed in 1929 was abandoned without obtaining leave to file a second suit. The relevant portion of Order XXIII, Rule 1 states that if a plaintiff withdraws a suit without permission, they are precluded from instituting any fresh suit in respect of the same subject matter. The High Court relied on the Privy Council decision in Raghunath Singh v. Hansraj Kunwar, concluding that Section 60 of the Transfer of Property Act was not exhaustive and could be overridden by procedural law.

However, the Federal Court disagreed, emphasizing that the right of redemption is an incident of a subsisting mortgage and subsists as long as the mortgage itself subsists. They cited the Privy Council decision in Raghunath Singh, which held that the right to redeem could only be extinguished by the means specified in Section 60 of the Transfer of Property Act, namely by act of the parties or by a decree of the court. The Federal Court concluded that unless the equity of redemption is extinguished by a decree, a second suit for redemption is not barred.

2. Whether the right of redemption was extinguished by the act of parties under the compromise of 7th November, 1932:
The High Court did not address this issue, but the Federal Court examined the two documents dated 7th November, 1932. The first document was an agreement by the mortgagor to execute a sale deed in favor of the mortgagees. The second document, executed in favor of the mortgagor's wife, promised a gift deed for her maintenance and residence. The Federal Court found no evidence that the mortgagees agreed to accept the lands in full satisfaction of their claims or promised to pay the sum of Rs. 100 mentioned. They concluded that the right of redemption was not extinguished by these documents, as they did not constitute a bona fide compromise.

3. Whether the compromise should be enforced under Section 53-A of the Transfer of Property Act:
The Federal Court rejected the argument that the compromise should be enforced under Section 53-A, which requires the transferee to be put into possession or to continue in possession in part performance of the contract. It was admitted that the mortgagees were never in actual or constructive possession of the suit lands. Therefore, Section 53-A did not apply, and the right of redemption was not extinguished.

4. Whether the mortgagees are entitled to possession, rent, and mesne profits from the lessees:
The Federal Court remitted the case to the High Court for further proceedings, directing that the trial should proceed on the footing that the mortgagor had a right to redeem. The High Court was instructed to determine whether the mortgagees had any right to possession, rent, or mesne profits, and if so, how they should account for the same in the account between themselves and the mortgagor.

Conclusion:
The Federal Court allowed the appeals, holding that the mortgagor's right to redeem was not extinguished either by procedural provisions of the Civil Procedure Code or by the compromise of 7th November, 1932. The cases were remitted to the High Court for further proceedings consistent with this conclusion, emphasizing the need for expeditious resolution.