LATE CHATURBHUJ MULJI Vs. PREMJI HARISAM DEAD

JUDGEMENT

(1.) This appeal is filed against dismissal of First Appeal No 5768 of 1998 by learned Single Judge on May 12, 1999 The fact giving rise to the present appeal as stated by the learned Single Judge in the judgment impugned in this LPA 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 Meghi ("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 plaintiff in 1959, plaintiffs filed Civil Suit No 7 of 1959 in the Court of the Civil Judge (SD), 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

(2.) The relevant portion of the consent decree as quoted by the learned Single Judge reads as under . "Hence, decree against the defendants Nos 1, 2, 3 and 4 in favour of the plaintiff as under (1) That the defendants No 1, 2, 3 and 4 should pay to the plaintiff 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 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 60, then along with other premises they will be entitled to enjoy for Rs 60,000/- as usufructuary mortgagee (4) That there is an amount of Rs 1,11,700 (Rupees one lakh eleven thousand and seven hundred only) due to be recovered by the plaintiffs herein from the defendants No 1, 2, 3 and 4 accept the same That in view of the old relationship of the plaintiffs with the defendants No. 1,2,3, and 4, the plaintiffs have with a view to give relief and agreed to enjoy the suit property as mortgagee in possession (Vatantar) for Rs 60,000/- But in the event of auction in the "second mortgage" or the defendant Nos 5 and 5D/ E/F in the event of auction of another debt of defendant Nos 1, 2, 3 and 4 at that time, the plaintiffs will be entitled to recover the said full amount of RTS 1,11,700/- (in words rupees one lac eleven thousand seven hundred) mentioned in the decree and the person purchasing the suit properties during the auction or the said second mortgagees will only be en titled to take over possession of the suit properties only after paying the said amount (5) That the defendants herein give up all their disputes with the plaintiffs and after hearing arguments of both the sides, following judgment is being delivered In respect of defendant No 5 herein, following decree is made against the defendants No 1, 2, 3 and 4 herein who should pay an amount of Rs. 20,000/- (Rupees twenty thousand only) along with the costs of the present suit to the defendant No. 5 who is second mortagagee within period of six months and if that is not happened then the defendant No, 5 will be entitled to file an application for passing of the final decree. As regards costs to the other parties, no order is being made. In respect of the mortgage of the plaintiffs, the composite decree is passed as above and if no recovery is made, then, the defendant No. 5 and its mortgagees in case it is felt legal, may file application for personal decree and such order is passed.

(3.) It was not disputed before the Court that defendant Nos. 1 to 4 failed to deposit in the Court amount of Rs. 50,000/- as mentioned in Clause 2 of the consent decree or Rs. 60,000/- as mentioned in Clause 1 of the consent decree. Clause 3, therefore, operated which provided that the plaintiffs would retain possession as usufructuary mortgagee. It is also not in dispute that the subsequent mortgagee- defendant No. 5 did not take any step to recover amount from defendant Nos.1 to 4, as stated in Clause 5 of the consent decree. On January 7, 1988, defendant No. 3 filed an application, Ex.75 which was registered as Civil Misc. Application No. 10 of 1988. It was infer alia stated in the said application that on April 29, 1960, consent decree was passed in the suit under which defendant Nos. 1 to 4 were required to pay Rs. 60,000/- to the plaintiffs and Rs. 20,000/- to defendant No. 5. It was further stated that as per the said terms, defendant No. 3 had deposited Rs. 62,478.25 (Rs.60,000/- + Rs.2,478.25 towards costs) of the plaintiffs and Rs.20,650/- Rs. 20,000/- + Rs. 650/- towards costs) of defendant No. 5 and thus, he was entitled to redeem the property. In spite of the consent decree and deposit of amount by defendant No. 3 possession of the property was not handed over to him. Defendant No. 3, therefore, prayed to pass final decree and to hand over possession of the mortgaged property to him.