CHATURBHUJ MULJI Vs. PREMJI HARIRAM

JUDGEMENT

(1.) This appeal is filed against dismissal of First Appeal No. 5768 of 1998 by the learned single Judge on May 12, 1999.

(2.) The facts giving rise to the present appeal as stated by the learned single Judge in the judgment impugned in this L.P.A., are that on May 12, 1953, a registered deed was executed by defendant Nos. 1 to 4, ("mortgagors" for short) in favour of one Ranchhoddas Meghji ("mortgagee" for short) for a sum of Rs. 75,000/-. Firm of Ranchhoddas Meghji, appellants herein (original defendant) owed certain amount for which it assigned the right, title and interest in the said property by a registered deed dated April 23, 1956 in favour of the plaintiffs. Documents of title of the property were handed over to the plaintiffs. In 1959, plaintiffs filed Civil Suit No. 7 of 1959 in the Court of the Civil Judge (S.D.), Bhuj against defendant Nos. 1 to 4 for recovering an amount of Rs. 89,650/-. Defendant No. 5 died during the pendency of the proceedings and his heirs and legal representatives were brought on record as defendant Nos. 5(a) to 5 (f). On April 29, 1960, a consent decree came to be passed in the said suit.

(3.) The relevant portion of the consent decree as quoted by the learned single Judge reads as under : "Hence, decree against the defendant Nos. 1, 2, 3 and 4 in favour of the plaintiff as under : 1. That the defendant Nos. 1, 2, 3 and 4 should pay to the plaintiffs an amount of Rs. 60,000/- (Rupees sixty thousand only) by 15-10-1960 and if they do not pay the same, then the plaintiff is entitled to execute the decree by taking into possession for enjoyment the properties described in plaint vide four direction as usufructuary mortgagee for due amount. 2. If the defendant Nos. 1, 2, 3 and 4 herein pay to the plaintiffs an amount of Rs. 55,000/- by 15-10-1960 then, the plaintiffs will be bound to let go the remaining amount due. 3. Out of the premises mentioned in the plaint under four direction one premise inside the Deli/premises facing on eastern side has been handed over in possession of the plaintiffs by the defendants and if the defendants pay an amount of Rs. 55,000/- to the plaintiffs by 15-10-1960, then they will be entitled to take back the possession and if they do not pay the said amount by 15-10-1960, then along with other premises they will be entitled to enjoy for Rs. 60,000/- as usufructuary mortgagee.