P. O. THOMAS AND ANOTHER Vs. LAILA DEVI

JUDGEMENT

(1.) THIS second appeal is by plaintiffs 2 and 3 in a suit for redemption of a mortgage Ext. A1 dated February 10, 1967. A preliminary decree for redemption was passed by the trial court, but it was set aside, and the gulf dismissed, on appeal by the defendant. The facts in brief are as follows. The first plaintiff executed a mortgage Ext. A1 on February 10, 1967 to the defendant over the plaint schedule property. The mortgage amount was Rs. 5,000/ - repayable within a period of five years. The mortgagee was put in possession of the property and he was to appropriate the yield towards the interest on the mortgage. He was to keep possession till the amount advanced was repaid.

(2.) THE first plaintiff later entered into an agreement Ext. B1 dated January 8, 1971 with the defendant for sale of the property to him for a consideration of Rs. 21,000/ -. An amount of Rs. 2,000/ - was received by the first plaintiff as advance on that day for deposit in O.S. No - 45 of 1956 on the file of the Sub Court, Alapuzha. After referring to Ext. A1, and the possession of the defendant thereunder, the agreement stipulated that on the defendant paying an amount of Rs. 14,000/ - as the balance consideration, after adjusting the mortgage amount of Rs. 5,000/ - and the advance of Rs. 2,000/ - before the expiry of the term of the mortgage, the first plaintiff will execute the deed of sale to be got prepared by the defendant, either in his name or in the name of any nominee of his. If the first plaintiff committed default in executing the sale, the defendant was at liberty to take proceedings for getting the deed of sale executed (the expenses of which will be reimbursed to him by the first plaintiff out of the balance amount of Rs. 14,000/ - due to him). The defendant was thereafter to continue in possession as owner in continuation of his present possession. if, on the other hand, the defendant defaulted in making payment of the balance consideration and getting the deed of sale executed within the time stipulated, the agreement will automatically ceases to have effect. In that event, the defendant will have no right to get assignment of the property, and the amount of Rs. 2,000/ - paid as advance will be appropriated towards the damages sustained by the first plaintiff.

(3.) PENDING suit, the 1st plaintiff assigned his rights over the property by Ext. A7 deed of sale - dated January 31, 1983' and the assignees have come on record as plaintiffs 2 and 3.