Judgement Law Rep. 45 Ind. App. 179 ( 1917- 1918) Narayan Ganesh Ghatate V. Baliram 77 Appeal from a judgment and decree of the Court of the Judicial Commissioners (May 8, 1911) affirming an order of the District Judge of Bhandara. By mortgage deeds executed in 1881 and 1884 as security for loans, mortgagors, represented in the appeal by the respondents, mortgaged to mortgagees, represented by the appellant, fifteen villages in the Central Provinces together with all rights. In 1898 a suit for foreclosure of the mortgages was instituted. The mortgagors contended, inter alia, that the mortgagees were not entitled to possession of the sir and khudkasht lands attached to the villages as the right to cultivate them was not mortgaged, and an issue was settled upon that question. The Civil Judge determined all the issues in favour of the mortgagees and, on June 30, 1899, made a decree ordering the mortgagors to pay on or before December 30, 1899, Rs.86,106 as principal and interest due, and that in default they should be debarred from redeeming. The decree gave particulars of the mortgaged premises, in which particulars were included the sir and khudkasht lands. The mortgagors appealed, claiming ex-proprietary rights in the sir lands, but their appeal was dismissed. The mortgagors having failed to pay, an order absolute for foreclosure was made. Upon appeal that order was set aside upon terms, and the matter was referred by agreement to a Conciliation Board, presided over by a Revenue officer, for arbitration. On February 23, 1905, an arbitration award was made whereby the mortgagors, in settlement of their liability under the mortgages to December 30, 1902, were to pay Rs. 13,750 by instalments, and it was provided that in default of payment there should be a foreclosure as to seven of the villages. Clause 7 of the award provided " The creditor has the same lien on the property mortgaged as he had before conciliation, by virtue of the mortgage deed. In case of default in paying the instalments the terms of the mortgage shall be enforced in respect of the amount awarded." A decree was passed that the award be filed under s. 525 of the Civil Procedure Code, 1882. The respondents as mortgagors having failed to make the pay ments provided by the award, the mortgagees, on June 16, 1910, obtained a decree absolute for foreclosure of the seven villages. The respondents as mortgagors having failed to make the pay ments provided by the award, the mortgagees, on June 16, 1910, obtained a decree absolute for foreclosure of the seven villages. Warrants for possession were issued, but as they contained no express mention of the sir and khudkasht lands the mortgagees applied to the Court claiming that they were entitled to possession of those lands. The District Judge rejected the application. An appeal by the present appellant, representing the mortgagees, was dismissed by the Court of the Judicial Commissioners for reasons which appear from their Lordships judgment. 1918. May 9. De Gruyther K.C. and Parikh for the appellant. The appellant is entitled to possession of the sir lands of the seven villages. The award merely provided the extent to which the rights under the mortgages of 1881 and 1884 should be exercised; only a mortgage could be the subject of a foreclosure. The award and the decree of 1910 were made "in pursuance of" the mortgages within the meaning of s. 45, sub-s. 6, of the Central Provinces Tenancy Act, 1898; s. 45, sub-s. 1, consequently does not apply. The award by clause 7 preserved the rights of the parties as they existed under the mortgage save as to the amount recoverable. The respondents did not appear. The judgment of their Lordships was delivered by LORD SUMNER. This is an appeal against a judgment of the Court of the Judicial Commissioner of Law Rep. 45 Ind. App. 179 ( 1917- 1918) Narayan Ganesh Ghatate V. Baliram 78 the Central Provinces, which affirmed an order of the District Judge made in execution proceedings on a foreclosure decree. The point has been very clearly argued, but their Lordships do not think it necessary to take time to consider the matter further. The history of the case, which is rather complicated, is set out chronologically and very conveniently in the judgment appealed against. The point for decision is one dependent on the construction of s. 45 of the Central Provinces Tenancy Act, 1898, chapter IV., " Of Occupancy-Tenants,” and particularly s. Vs. 6 of that section. The history of the case, which is rather complicated, is set out chronologically and very conveniently in the judgment appealed against. The point for decision is one dependent on the construction of s. 45 of the Central Provinces Tenancy Act, 1898, chapter IV., " Of Occupancy-Tenants,” and particularly s. Vs. 6 of that section. The substance of the decision of the Court below was that the conciliation award of February, 1905, was, for the purposes of this case, a fresh origin of the rights between the parties, and that, although it came into existence in consequence of the mortgages of 1881 and 1884, and transactions thereunder, it was, both for the purpose of enforcement and for the purpose of the application of this particular section, the transaction between the parties which was the foundation of their rights. Accordingly they concluded that the transfer made or decreed by the proceedings under review could not be said to be in pursuance of the mortgages of 1881 and 1884 which, as documents expressly providing for the transfer of the right to occupy sir land as a proprietor within sub-s. C, would have been saved from the operation of sub-s. 1, but that in truth sub-s. 1 of s. 45 must be applied, and that therefore, in spite of the terms of the award, which in virtue of the agreement of reference became the agreement of the parties, the mortgagors could not so transfer their right to occupy sir land as to divest themselves of their right as occupancy tenants under the Act. The reasons, their Lordships think, are sufficiently and fully given in the judgment appealed against and do not require repetition. It is a question of construction, not incapable of being argued and even decided either way, but their Lordships see no reason to differ from the decision appealed against, and will humbly advise His Majesty that the appeal be dismissed, but without costs, as the respondents have not appeared.