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Supreme Court of India
Narayan Deorao Javle (Deceased ) … vs Krishna on 17 August, 2021Author: Hemant Gupta
Bench: Hemant Gupta, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4726 OF 2021
(ARISING OUT OF SLP (CIVIL) NO. 13575 OF 2015)
NARAYAN DEORAO JAVLE (DECEASED)
THROUGH LRS. …..APPELLANT(S)
VERSUS
KRISHNA & ORS. …..RESPONDENT(S)
JUDGMENT
HEMANT GUPTA, J.
1. The plaintiff is in appeal aggrieved against the judgment of the
High Court of Judicature at Bombay dated 21.1.2015 whereby the
suit for redemption of mortgage land was dismissed, setting aside
the judgment of the First Appellate Court and restoring that of the
Trial Court.
2. Brief facts leading to the present appeal are that defendant Nos. 1
and 2 were owners of the land comprising in Survey Nos. 67/3 and
65/1 in Village Veni, Taluka Lonar. The said defendants mortgaged
Signature Not Verified
the land in favour of defendant No. 3 on 30.4.1954 (Ex.81) to
Digitally signed by
Jayant Kumar Arora
Date: 2021.08.17
secure a sum of Rs.700/-. Defendant Nos. 1 and 2 sold the
17:26:18 IST
Reason:
mortgaged land comprising in Survey No. 67/3 admeasuring 1 acre
1
32 gunthas to the plaintiff vide registered sale deed for
consideration of Rs.1000/-. Thus, the plaintiff stepped in the shoes
of the mortgagor on account of the sale transaction.
3. The original mortgagee (defendant No. 3) filed a Regular Civil Suit
No. 237 of 1965 for recovery of mortgage amount of Rs.700/- along
with the interest accrued against the original mortgagors
(defendant Nos. 1 and 2). The plaintiff was not impleaded as a
party in the said suit, though the sale in his favour was before the
filing of the suit. A preliminary decree was drawn based on a
compromise whereby the defendant Nos. 1 and 2 agreed to pay
the mortgage amount on or before 27.3.1967. Since defendant
Nos. 1 and 2 failed to pay the said amount, the preliminary decree
was converted into a final decree on 4.6.1969 which led to
foreclosing the rights of the mortgagor to redeem the property. In
execution of such decree, the mortgagee had taken possession
from the plaintiff, the present appellant on 5.12.1980. It is
thereafter the plaintiff filed Regular Civil Suit No. 7 of 1984 against
the original mortgagors and the mortgagee seeking redemption of
the mortgaged property.
4. The Trial Court though dismissed the suit but returned a finding
that the suit is within the period of limitation as the statutory
period of redemption is of 30 years. The suit was filed on
23.1.1984 though the period of 30 years was to expire on
30.4.1984. It was also held that the plaintiff has purchased the
2
property and not the equity of redemption. It was also held that
the plaintiff filed an application before the Executing Court for a
stay on the execution of the decree. However, such an order
(Ex.124) will not operate as res judicata as the application was only
to stay the execution and the appeal against the said order was
dismissed (Ex.90). In respect of Issue No. 7(A), the Court held that
the partial redemption is permissible in view of the judgment of the
High Court reported as Bank of Poona v. Navrajasthan
Cooperative Housing Society Ltd.1, since the plaintiff has not
purchased the equity of redemption, therefore, the plaintiff is not
entitled to redeem part of the property though plaintiff was ready
to pay the entire mortgage amount. Since the right of redemption
and the right of foreclosure are coextensive, therefore, no sooner
than a decree for foreclosure is passed, the right to redeem
extinguishes.
5. In appeal, the First Appellate Court held that the revenue record
shows that the plaintiff was in possession of the suit land after the
sale deed was executed in his favour on 18.5.1964. The plaintiff is
an attesting witness to the mortgage deed (Ex.81) but that will
only lead to an inference that the title of the plaintiff is subject to
the rights of defendant No.3 as mortgagee in respect of land
purchased by him. He is, thus, a mortgagor within the meaning of
Section 59A of the Transfer of Property Act, 1882 2. Therefore, in
terms of Section 60 of the Act, he had a right to redeem the
1 AIR 1968 BOM 106
2 For short, the ‘Act’
3
property provided it is not extinguished by the act of the parties or
by decree of the Court. Examining as to whether the decree of
foreclosure has extinguished the right of redemption available to
the plaintiff, for that reliance was placed upon the judgment of the
learned High Court in Bank of Pune wherein, the purchaser
instituted a suit for redemption which was decreed. The first
appellate court relied upon Banamali Tripathy v. Biswanath
Pattanaik3. It was further held that since the plaintiff has
purchased the land before the institution of the suit, therefore, the
mortgagee ought to have made him a party in view of the
provisions of Sections 59A and 91 of the Act. Therefore, the decree
of foreclosure was set aside by the High Court.
6. The High Court held that the suit of the plaintiff for redemption was
not maintainable. A preliminary decree was passed in the suit filed
by the mortgagee for foreclosure based on a compromise in which
the original mortgagors were required to pay the amount by
27.3.1967. Since the amount was not paid, the final decree was
drawn up on 4.11.1969. Such decree was not challenged and
became final. Thus, Plaintiff cannot seek redemption of the
mortgage.
7. Learned counsel for the appellant relies upon Sections 59A, 60 and
91 of the Act to contend that the plaintiff was required to be
impleaded as a party in the suit for foreclosure as also the
provisions of Order XXXIV Rule 1 of the Code of Civil Procedure,
3 AIR 1984 Orissa 145
4
19084. Such provisions read as under:
“59-A. References to mortgagors and mortgagees to
include persons deriving title from them. —Unless
otherwise expressly provided, references in this Chapter to
mortgagors and mortgagees shall be deemed to include
references to persons deriving title from them respectively.
60. Right of mortgagor to redeem.-At any time after the
principal money has become due, the mortgagor has a right,
on payment or tender, at a proper time and place, of the
mortgage-money, to require the mortgagee (a) to deliver to
the mortgagor the mortgage-deed and all documents
relating to the mortgaged property which are in the
possession or power of the mortgagee, ( b) where the
mortgagee is in possession of the mortgaged property, to
deliver possession thereof to the mortgagor, and ( c) at the
cost of the mortgagor either to re-transfer the mortgaged
property to him or to such third person as he may direct, or
to execute and (where the mortgage has been effected by a
registered instrument) to have registered an
acknowledgment in writing that any right in derogation of
his interest transferred to the mortgagee has been
extinguished:
Provided that the right conferred by this section has not
been extinguished by act of the parties or by decree of a
Court.
The right conferred by this section is called a right to
redeem and a suit to enforce it is called a suit for
redemption.
Nothing in this section shall be deemed to render invalid any
provision to the effect that, if the time fixed for payment of
the principal money has been allowed to pass or no such
time has been fixed, the mortgagee shall be entitled to
reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property. —
Nothing in this section shall entitle a person interested in a
share only of the mortgaged property to redeem his own
share only, on payment of a proportionate part of the
amount remaining due on the mortgage, except only where
a mortgagee, or, if there are more mortgagees than one, all
such mortgagees, has or have acquired, in whole or in part,
the share of a mortgagor.
4 For short, ‘the Code’.
5
xx xx xx
91. Persons who may sue for redemption. —Besides
the mortgagor, any of the following persons may redeem, or
institute a suit for redemption of, the mortgaged property,
namely—
(a) any person (other than the mortgagee of the interest
sought to be redeemed) who has any interest in, or charge
upon, the property mortgaged or in or upon the right to
redeem the same;
(b) any surety for the payment of the mortgage-debt or any
part thereof; or
(c) any creditor of the mortgagor who has in a suit for the
administration of his estate obtained a decree for sale of the
mortgaged property.”
Order XXXIV, Rule 1-
Parties to suits for foreclosure sale and redemption.
– Subject to the provisions of this Code, all persons having
an interest either in the mortgage-security or in the right of
redemption shall be joined as parties to any suit relating to
the mortgage.
Explanation. -A puisne mortgagee may sue for foreclosure
or for sale without making the prior mortgagee a party to
the suit; and a prior mortgage need not be joined in a suit
to redeem a subsequent mortgage
8. It is argued that the extinguishment of the right of redemption
contemplated by Section 60 of the Act is by decree of the Court.
Such decree means a valid decree and not a decree passed against
the mortgagor who has lost the title in the part of the suit property
after suit land was conveyed to the appellant on 18.5.1964. It is
also argued that the plaintiff was in possession, which is apparent
from the revenue record and the fact that the possession was
taken from the plaintiff in the execution of the decree for
6
foreclosure. Since the plaintiff was in possession on the strength of
the sale executed in his favour before filing suit for foreclosure, the
plaintiff was not only a proper but a necessary party as the
impleaded defendant had lost the title in the suit property on the
date of filing of the suit.
9. On the other hand, learned counsel for the respondent relies upon
an order passed by this Court in a judgment reported as Allokam
Peddabbayya & Anr. v. Allahabad Bank & Ors.5, to contend
that a purchaser from a mortgagor has no better right than the
mortgagor himself. It is argued that the mortgagee was not served
with a notice of transfer of purchase on 18.5.1964, therefore, the
mortgagee could not implead the subsequent purchaser in the suit
for foreclosure. The reliance is placed upon the following paras of
the judgment, which read as under:
“9. The right to enforce a claim for equity of redemption is a
statutory right under the Act. It necessarily presupposes the
existence of a mortgage. The right to redeem can stand
extinguished either by the act of the parties or by operation
of the law in the form of a decree of the court under the
proviso to Section 60 of the Act. The appellants being
purchasers of the equity of redemption can have or claim no
better rights under Section 91, than what their predecessor-
in-interest had under Section 60 of the Act.
xx xx xx
13. The decree for foreclosure in OS No. 68 of 1987, and the
subsequent auction-sale followed by issuance of sale
certificate, extinguished the right to redemption by reason
of the proviso to Section 60. The plaintiffs having interest in
the mortgaged property through their predecessor-in-
interest and in the right to redeem the same were
5 (2017) 8 SCC 272
7
competent to do so under Section 91 of the Act, but subject
to the limitation under the proviso to Section 60. Their rights
could not be any superior or separate from that of their
predecessor-in-interest. If the right to redeem stood
extinguished by operation of the law under the proviso to
Section 60 of the Act prior to the period of limitation, it
cannot be contended that the right could nonetheless be
enforced any time before the expiry of limitation of 30 years.
If there remained no subsisting mortgage, it is difficult to
fathom what was to be redeemed.”
10. We have heard learned counsel for the parties. The issues arising in
the present appeal are examined hereinafter.
(i) Whether the plaintiff was a necessary party in a suit for foreclosure
filed by the mortgagee after the purchase?
11. The plaintiff has purchased property vide registered sale deed on
18.5.1964, much before the filing of the suit for foreclosure in the
year 1965. The possession of the plaintiff was recorded in the
revenue record after the purchase of the property, but still, the
mortgagee chose not to implead the subsequent purchaser. The
original mortgagor who has mortgaged the property had no
subsisting title, interest or right in the property conveyed, therefore,
the factum of compromise between the mortgagor and the
mortgagee is ineffective and not enforceable against the purchaser
i.e., the plaintiff. Once the plaintiff has purchased property, the
equity of redemption is part of the title and as an owner, he could
seek redemption of the suit land.
12. The learned counsel for the mortgagee could not point out any
provision of law that can prove that the subsequent purchaser has
8
to give notice to the mortgagee signifying purchase of the property,
by a mortgagor. The factum of purchase coupled with the delivery of
possession completes the title of the plaintiff over the land in
question. Therefore, the decree obtained in such a suit is void.
13. The plaintiff rightly claimed that he was required to be impleaded,
as he was a necessary party in a suit for foreclosure filed by the
mortgagee after the purchase of part of the mortgaged land. The
appellant also placed reliance on a judgment of this Court reported
as Dr. Govinddas & Anr. v. Shrimati Shantibai & Ors.6, to
contend that the mortgagee, the original mortgagor and the
appellant are residents of the same village. Therefore, the factum of
sale is deemed to be in the notice of the mortgagee in addition to
the delivery of possession by the mortgagors supported by the
revenue record and also the fact that the possession was taken
from the appellant. Therefore, non-impleadment of the appellant
renders the decree for foreclosure as non-est and void. It is also
argued that it was a case of a simple mortgage without delivery of
possession. The possession was taken from the appellant
consequent to the decree of foreclosure granted in favour of the
mortgagee. The findings recorded by the Trial Court that the
plaintiff has purchased the property and not equity of redemption is
clearly without any basis. In view of the fact that the possession
was delivered and the fact that the parties are residents of the
same village, there is ‘constructive notice’ of purchase of land by
6 (1973) 3 SCC 418
9
the appellant.
14. In Allokam Peddabbayya, the purchaser filed a suit for injunction.
The suit was dismissed. The appeal against the judgment and
decree of the trial court was also dismissed. It is thereafter, a suit
for redemption of mortgage was filed impleading the bank as the
defendant. The sale certificate was issued to the purchaser on
2.7.1997 after filing of the suit for injunction and after the
objections of the plaintiff in execution were dismissed, so is the
appeal against an order of dismissal of objections was dismissed. It
was in these circumstances, this Court held as under:
“12. The sale certificate was issued to Defendant 2 on 2-7-
1997 followed by delivery of possession in Execution Petition
No. 203 of 1997. The objection of the plaintiffs in Execution
Appeal No. 996 of 1997 was also rejected. Only thereafter
the plaintiffs instituted OS No. 96 of 1999 for redemption of
the mortgage under Order 34 Rule 1 CPC contending that
they were willing to deposit the mortgage dues and that the
decree in OS No. 68 of 1987 was not binding on them
because they had not been impleaded as party in the same.
In cross-examination, the plaintiffs acknowledged having
been informed by their lawyer at the time of purchase, of
the mortgage created by deposit of title deeds, by
Defendants 3 and 4.
xx xx xx
14. No challenge was laid out in OS No. 96 of 1999, either
to the auction-sale or to set aside the sale certificate issued
to Defendant 2. The reliance upon Order 34 Rule 1 CPC is
completely misconceived as under Rule 8 the right to
redemption survived only till confirmation of the sale and
not thereafter. The suit was instituted only after issuance of
the sale certificate and the question for redemption had
become irrelevant.”
In view of the said fact, the judgment referred to by the
learned counsel for the respondent is not applicable to the facts of
10
the present case.
15. Still further, in terms of Section 91 of the Act, the plaintiff having
stepped into the shoes of the mortgagor in respect of land
purchased by him has a right to redeem the land mortgaged. In
addition, the Order XXXIV Rule 1 of the Code provides that all
persons having an interest either in the mortgage-security or in the
right of redemption shall be joined as parties to any suit relating to
the mortgage including suit for foreclosure. The original
mortgagors i.e., defendant Nos. 1 and 2 denied the plaintiff’s right
to redeem the property though admitting they have borrowed
Rs.1,000/- from the plaintiff. It was pleaded that the plaintiff was
put in possession of the suit property for ten years and, therefore,
plaintiff was required to resell the property to defendant Nos. 1 and
2. But the said defendant has not supported such plea in evidence.
The defendant Nos. 1 and 2 entered into compromise with the
mortgagee to pay the mortgage amount. The said mortgage
amount was not paid which led to passing of the final decree.
Thus, it is a case of collusion between the original mortgagors and
the mortgagee so as to defeat the right of the plaintiff.
16. The Equity of redemption means a right to redeem the property
based upon equitable principles. This Court in a judgment reported
as Shivdev Singh & Anr. v. Sucha Singh & Anr.7, held that the
right of redemption recognised under the Act is a statutory and
legal right which cannot be extinguished. This Court held as under:
7 (2000) 4 SCC 326
11
“8. …The right of redemption recognised under the Transfer
of Property Act is thus a statutory and legal right which
cannot be extinguished by any agreement made at the time
of mortgage as part of the mortgage transaction.”
17. In Achaldas Durgaji Oswal (Dead) through LRs v. Ramvilas
Gangabisan Heda (Dead) through LRs & Ors.8, this Court held
that the right of redemption is statutorily recognised right provided
under Section 60 of the Act and after the judgment of Privy Council
in Thumbasawmy Mudelly v. Mohd. Hossain Rowthen9, called
upon the legislature to make suitable amendments, this Court held
as under:
“11. The doctrine of redemption of mortgaged property was
not recognised by the Indian Courts as the essence of the
doctrine of equity of redemption was unknown to the
ancient law of India. The Privy Council in Thumbuswami v.
Hossain, (2 IA 241 : ILR (1875) 1 Mad 1) called upon the
legislature to make a suitable amendment which was given
a statutory recognition by reason of Section 60 of the
Transfer of Property Act…”
18. In a recent judgment of this Court reported as Jamila Begum
(Dead) though Legal Representatives v. Shami Mohd.
(Dead) through Legal Representatives & Anr. 10, it was held
that by virtue of purchase of the property, the purchaser has
purchased the entire equity of redemption. This Court held as
under:
“Whether decree for redemption of mortgage is
correct?
32. Section 60 of the Transfer of Property Act, 1882 provides
that at any time after the money becomes due, the
8 (2003) 3 SCC 614
9 ILR (1875) 1 Mad 1
10 (2019) 2 SCC 727
12
mortgagor has a right, on payment or tender, at a proper
time and place, of the mortgage-money to require the
mortgagee to deliver the mortgage deed and all documents
relating to the mortgaged property, and where the
mortgagee is in possession of the mortgaged property, to
deliver possession thereof to the mortgagor. In Shivdev
Singh v. Sucha Singh [Shivdev Singh v. Sucha Singh, (2000)
4 SCC 326] , it was held as under: (SCC p. 330, para 8)
“8. … The right of redemption recognised under the
Transfer of Property Act is thus a statutory and legal
right which cannot be extinguished by any
agreement made at the time of mortgage as part of
the mortgage transaction.”
19. The equity of redemption is a right which is subsidiary to the right
of ownership. Such right is not over and above the right of
ownership purchased by the plaintiff. The expression equity of
redemption is a convenient maxim but an owner, who has stepped
into the shoes of the mortgagor, after the purchase from the
mortgagor but before filing a suit for foreclosure is entitled to
redeem the property in terms of Section 60 of the Act.
The second issue which needs to be addressed is,
(ii) Whether the decree obtained in a suit for foreclosure operates as
res judicata and the right of redemption stands extinguished by
the decree of the Court?
20. The High Court has held that the decree for foreclosure will operate
as res judicata on account of the fact that the appellant filed an
application for stay of the execution proceedings. The Executing
Court has dismissed such an application. Such dismissal of the
application in execution proceedings would operate as res judicata.
It was also held that the appellant has lost right of redemption
which is coextensive with the right of foreclosure.
13
21. An application for stay of execution does not have any trapping of a
decree as is contained in Order XXI Rules 101 & 103 of the Code.
The said provision reads as under:
“101. Question to be determined.-All questions (including
questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an
application under rule 97 or rule 99 or their representatives,
and relevant to the adjudication of the application, shall be
determined by the Court dealing with the application, and
not by a separate suit and for this purpose, the Court shall,
notwithstanding anything to the contrary contained in any
other law for the time being in force, be deemed to have
jurisdiction to decide such questions.
xx xx xx
103. Orders to be treated as decrees. – Where any
application has been adjudicated upon under rule 98 or rule
100, the order made thereon shall have the same force and
be subject to the same conditions as to an appeal or
otherwise as if it were a decree.”
22. The only effect of filing of an application for stay of the execution
would be that the appellant can be said to be aware of the fact that
there is a decree for foreclosure passed against him which has not
been stayed by virtue of the order of the Court. There is no
determination of the claim as is contemplated in terms of Order XXI
Rule 97 or Rule 99 of the Code having force of decree. The
declining of stay of execution will not operate as res judicata only
because Section 11 Explanation VII of the Code is applicable to the
execution as well.
23. Therefore, the findings recorded by the High Court that the
appellant is bound by the decree passed in the suit for foreclosure
14
is not tenable inter alia because the appellant was not impleaded
as a party, though mandated under Section 91 of the Act and Order
XXXIV Rule 1 of the Code. The mortgagee was aware of the
transaction of purchase in view of the judgment of this Court in Dr.
Govinddas as well as for the reason that the possession of the
appellant was recorded in the revenue record. The subsequent
conduct of mortgagee who has taken possession from the appellant
also corroborates the fact that the mortgagee was aware of the
factum of sale and possession of the appellant but still have chosen
not to implead him as a necessary party. Still further, it is apparent
from the pleadings itself that the original mortgagor had colluded
with the mortgagee. Therefore, the right conferred by Section 60 of
the Act does not stand extinguished by decree of the Court which is
to be binding and had to be passed in the presence of the
necessary parties and should not be collusive.
24. The High Court has referred to the judgment reported as
Samarendra Nath Sinha & Anr. v. Krishna Kumar Nag11, to
non-suit the appellant. However, in the aforesaid judgment, the
mortgagor was non-suited on the ground that he was a purchaser
pending lis. In the said case, one Hazra was a purchaser from the
original mortgagor but he failed to make payment of the mortgage
amount. The mortgagee-initiated proceedings for foreclosure on
17.7.1945 in which a preliminary decree was passed on
23.12.1946. The respondent purchased part of the equity of
11 AIR 1967 SC 1440
15
redemption from his judgment-debtor, Hazra, after the preliminary
decree was passed. The Court found that the decree was not in the
form of a foreclosure decree but of a mortgage decree for sale. The
final decree was passed after notice to the mortgagors and the said
Hazra. It was held as under:
“16. … Section 91 of the Transfer of Property Act provides
that besides the mortgagor any person other than the
mortgagee who has any interest in or charge upon the
property mortgaged or in or upon the right to redeem the
same may redeem or institute a suit for redemption of such
mortgaged property. An execution purchaser therefore of the
whole or part of the equity of redemption has the right to
redeem the mortgaged property. Such a right is based on
the principle that he steps in the shoes of his predecessor-in-
title and has therefore the same rights which his
predecessor-in-title had before the purchase. Under Section
59-A of the Act also all persons who derive title from the
mortgagor are included in the term “mortgagor” and
therefore entitled to redeem………………………… It follows
that the respondent having purchased from the said Hazra
while the appeal by the said Hazra against the said
preliminary decree was pending in the High Court, the
doctrine of lis pendens must apply to his purchase and as
aforesaid he was bound by the result of that suit. In the view
we have taken that the final foreclosure decree was
competently passed by the trial court, his right to equity of
redemption was extinguished by that decree and he had
therefore no longer any right to redeem the said mortgage.
His appeal against the said final decree was misconceived
and the High Court was in error in allowing it and in passing
the said order of remand directing the trial court to reopen
the question of redemption and to allow the respondent to
participate in proceedings to amend the said preliminary
decree.”
25. Thus, we find that the High Court has misread the judgment of this
Court in Samarendra Nath Sinha. It is not a case of transfer from
mortgage prior to the decree of foreclosure but a case of purchaser
pending lis.
16
26. Another judgment referred to by the High Court is Mrutunjay Pani
& Anr. v. Narmada Bala Sasmal & Anr. 12 It was an appeal filed
by the mortgagee who claimed to have purchased the equity of
redemption. The argument of the appellant was that the
mortgagee has failed to pay rent which was the responsibility of
the mortgagor in terms of the mortgage deed. For the default of
payment of arrears of rent, the property was put to sale and was
purchased by the mortgagee. Therefore, the remedy of the
mortgagor is to seek setting aside of sale. It was held as under:
“7. The legal position may be stated thus: ( 1) The governing
principle is “once a mortgage always a mortgage” till the
mortgage is terminated by the act of the parties themselves,
by merger or by order of the court. ( 2) Where a mortgagee
purchases the equity of redemption in execution of his
mortgage decree with the leave of court or in execution of a
mortgage or money decree obtained by a third party, the
equity of redemption may be extinguished; and, in that
event, the mortgagor cannot sue for redemption without
getting the sale set aside. (3) Where a mortgagor purchases
the mortgaged property by reason of a default committed by
him the mortgage is not extinguished and the relationship of
mortgagor and mortgagee continues to subsist even
thereafter, for his purchase of the equity of redemption is
only in trust for the mortgagor.”
The said judgment does not advance the case of the
mortgagee.
27. Thus, the decree passed in the suit for foreclosure is a decree
which is void and non-est. The decree is a result of collusion
between defendants 1 & 2 and Defendant No. 3 so as to frustrate
rights of a purchaser from the mortgagor.
(iii) Whether the plaintiff is entitled to redeem the share of the
12 AIR 1961 SC 1353
17
property purchased by him on the payment of the entire mortgage
amount?
28. This Court in Shivdev Singh; Achaldas Durgaji Oswal and
Jamila Begum has held that right to redemption is not an
equitable relief, it is a statutory right. Therefore, the appellant has
a right to redeem land provided the right is not extinguished by
decree of the Court. As discussed above, the decree passed at the
back of the transferee mortgagor prior to the filing of the suit for
foreclosure cannot be said to be a valid decree.
29. The appellant has purchased the land measuring 1 acre 32 gunthas
comprising in Survey No. 67/3 for a sum of Rs.1,000/-. No part of
the sale consideration was paid to the owners or was kept by the
appellant for payment to the mortgagee. Thus, it was unequivocal
sale of complete rights in the land comprising in Survey No. 67/3.
Section 60 of the Act provides that a person interested in a share of
the mortgaged property will not entitle him to redeem his own
share on payment of a proportionate part of the amount remaining
due on mortgage. Therefore, conversely, a purchaser from the
mortgagor is entitled to redeem the share of the land purchased by
him but on payment of the entire mortgage amount. The First
Appellate Court has returned such finding in favour of the appellant
in Point No. 3 wherein it was held as under:
“POINT NO. 3:- The answer to this point is a decision in Bank
of Bank of Poona v. Navrajasthan Cooperative Housing
Society Ltd., reported in 1967 Mh.L.J. 774 (AIR 1968 Bom
106), in which the Plaintiff had purchased a portion of the
mortgaged property and it was held that he had a right to
redeem only a portion which he had purchased by making
18
payment of the proportionate mortgage amount. Second
part of Section 60 cannot be made applicable to the present
case, as only in respect of the property purchased by the
Plaintiff a right to redeem is inexistence, while in respect of
the other part, of which Defendant Nos.1 & 2 are the
owners, right to redeem is extinguished, therefore even if
the Plaintiff redeems the suit land it will not be a redemption
in part.”
30. Therefore, the decree of foreclosure passed in the suit filed by the
mortgagee will not extinguish the right of the mortgagor to redeem
land in view of the fact that he was not impleaded as a party in the
suit though he has purchased part of the mortgaged property by
virtue of registered sale deed.
31. Consequently, the appeal is allowed. The judgment of the High
Court is set aside and that of the First Appellate Court is restored.
The appellant is given three months’ time to deposit the mortgage
amount and when the amount is deposited, he shall be entitled to
seek restoration of possession which was taken from him in execu-
tion of a decree of foreclosure. The Executing Court shall ensure
that the delivery of possession be given to the appellant in an ex-
peditious manner.
……………………………………..J.
(HEMANT GUPTA)
………………………………………J.
(A.S. BOPANNA)
NEW DELHI;
AUGUST 17, 2021.
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