AHILYABAI Vs. SHANTABAI DEAD

JUDGEMENT

(1.) This appeal is filed against the judgment and decree dated 26/3/1985 passed by the High Court of Karnataka at Bangalore in regular Second Appeal No. 932 of 1984 confirming the decree passed by the Principal Munsiff, Bijapur, in Original Suit No. 331 of 1981. All the courts below dismissed the suit filed by the appellants on the ground that it was barred by the period of limitation.

(2.) For deciding the contention whether the suit was barred by limitation, we would first refer to a few admitted facts. It is the contention of the parties that the original mortgagor, Dhondiba Subarao Mahindrakar was the owner of the suit property situated at Bijapur city, Bijapur. He executed a mortgage deed on 10/7/1933 in favour of his brother Hanamanth Subarao Mahindrakar for a sum of Rs. 2,500. 00. As recorded by the High Court, the mortgaged amount was to be repaid within five years and the mortgage was to enjoy the property free of rent; that in case the mortgaged amount was not paid, the mortgage would continue in possession on the same terms till the amount came to be paid; in case the mortgage needed the amount and demanded the same from the mortgagor and the mortgagor failed to pay, the mortgage was to foreclose the mortgage and recover the same and so on.

(3.) The mortgage, Shri Hanamanth Subarao Mahindrakar enjoyed the property till his death i. e. 30/1/1942. It is also an admitted fact that since 30/1/1942 mortgagor recovered back the possession and continued with the same till 31/8/1981. In 1962 respondent filed a civil suit for recovering the possession of the properties by contending that she was legal heir of the mortgagee. The suit was finally decreed on 19th March, 1981 as R. S. A 252 of 1980 filed by the present appellants, was dismissed by the High Court and on the basis of the said decree, possession of the suit property was handed over to respondent on 31/8/1981. As the possession of the property was handed over to respondent, appellants filed the present suit i. e. O. S. A. No. 331 of 1981 on 11/12/1981 before the Munsiff Court at Bijapurfor redemption and possession of the suit property. The suit has been dismissed on the ground that it is barred by limitation.