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TMI Blog1949 (4) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... property in the event of there being a default on the part of the mortgagor to pay the amount on the due date and also if ertain amount of interest remained in arrears. The defendant, as the mortgagor was in default, threatened to sell the mortgaged properties under his power of sale and advertised the sale in the papers. Thereupon the plaintiff filed a suit n the Thana Court under Section 15D claiming an account under the mortgage and asking for a declaration that he was an agriculturist and for a declaration of the amount due to the defendant at the foot of the account that might be aken with regard to the mortgage and also asking for an injunction restraining the defendant from taking possession or selling the property. The learned Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of the amount of principal and interest remaining unpaid on the mortgage and for a decree declaring that amount; and Sub-section (2) of Section 16D provides that the amount remaining unpaid shall be determined under the same rules as would be applicable under this Act if the mortgagee had sued for the recovery of the debt. Then Sub-section (3) gives a certain option both to the mortgagor and to the mortgagee; the option given to the mortgagor is that at any time before the decree in the suit is signed, he may apply to the Court to pass a decree for the redemption of the mortgage; and the option given to the mortgagee is that if he would then have been entitled to sue for foreclosure or sale, he may apply to the Court to pass a decree fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, the right of the mortgagee to exercise his power of sale without the intervention of the Court arises out of Section 69, Sub-section (1), T. P. Act. As part of the property is situate in the town of Bombay and as the power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage deed, Section 69(1)(c), T. P. Act, entitles the mortgagee to exercise the power of sale without the intervention of the Court, and when the trial Court restrained the mortgagee from exercising that power, the Court ought to have been satisfied that there was some provision in any other legislation which deprived the mortgagee of a right which the law had conferred on him under the Transfer of Property Act. In my opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if such a power of sale is given to him under the mortgage deed so long as the suit remains pending and so long as the decree is not passed. But once the decree is passed declaring an amount and the mortgagor has not exercised his option of redemption and the mortgagee has not exercised his option to ask for a decree for sale, then the mortgagee cannot be prevented from exercising his power of sale. 6. The appeal must, therefore, succeed and the decree passed by the trial Court will be modified by deleting from it the provision with regard to the injunction restraining the defendant from selling the property without the intervention of the Court. The mortgagee will be entitled to his mortgage debt. 7. With regard to costs, defendant 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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