KALAIAH ALIAS KALEGOWDA Vs. LINGAMMA

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs, whose suit for redemption of mortgage has been dismissed by the Munsiff, Malavalli, in O.S. 147/1974. The learned Principal Civil Judge, Mandya, has affirmed the dismissal of the suit by dismissing the Regular Appeal No. 178/1976 preferred by the appellants.

(2.) The facts of the case are not in dispute:- On 20th July, 1953 the defendants-3 and 4 executed a registered mortgage deed in favour of defendant No. 1 for a sum of Rs. 1,000/-. Defendant No. 1 was put in possession of the suit lands. It was said that defcndants-3 and 4 had executed the mortgage deed for raising funds for performing the marriage of defendant No. 2 and consequently, defendant No. 2 was also bound by the mortgage. The period of mortgage was five years and therefore the amount became payable on the 20th of July, 1958. Subsequently on 4-4-1963 the plaintiffs claim to have acquired the equity of redemption because defendant No. 2 sold 30 guntas out of Sy. No. 153/2 to the plaintiff for a sum of Rs. 2,000/-. Defendant No. 2 received a sum of Rs. 1,450/- in cash and left the balance of Rs. 550/- with the plaintiff to pay to defendant No. 1, the mortgagee, and to redeem the mortgage. The plaintiffs offered the full amount of the mortgage to defendant No. 1, but defendant No. 1 refused to redeem the mortgage. Consequently, a suit was filed by the plaintiffs, and defendant No. 2 against defcndants-1, 3 and 4 for the redemption of the mortgage and for possession of the mortgaged property. That suit was numbered as O.S. 1698/1963. Ultimately, by a Judgment and decree dated 23-8-1968 a decree for redemption was granted, but the Court did not grant a decree for possession. In substance, the suit was partly decreed. However, the decree drawn up wrongly showed that the suit had been dismissed.

(3.) The Judgment in O.S. 1698/1963 discloses that the plaintiffs were required to pay the mortgage amount within 3 years. It is not in dispute that the plaintiffs did not pay the mortgage amount within the period specified in the decree, and it is also admitted that no final decree was ultimately passed. Thereafter, the instant suit was filed by plaintiffs on 19-4-1973 for redemption of the same mortgage, dated 20th July, 1953, and for delivery of possession of the mortgaged property. The case of the plaintiffs was that the mortgage was still subsisting and that the plaintiffs had deposited a sum of Rs. 1,000/-. It was further averred that the plaintiffs had come to know that there was no partition between defendants-2 to 4 and therefore the integrity of the mortgage was subsisting. The plaintiffs were therefore entitled to redeem the entire mortgage.