CHHEDI SAHU Vs. SHEORAJI

JUDGEMENT

(1.) This appeal has arisen out of proceedings initiated by an application under Section 8 of the U. P. Debt Redemption Act, Act No. 13 of 1940, for amendment of a decree for redemption.

(2.) The facts in brief are that on 5-1-1880, one Janki and his son Kanhai mortgaged a house now in dispute, to one Ram Sarup for Rs. 299/-. The mortgage was for possession. On 2-1-1883, the two mortgagors executed a simple mortgage in resp'ect to the same house in favour of the same mortgagee for Rs. 299/-and stipulated therein that it would not be permissible for the mortgagors to redeem the mortgage of 1880 without paying up the amount due under the simple mortgage of 1883.

(3.) The mortgagees remained in possession since 1880. Janki and Kanhai both died, and Kanhai's heirs who inherited the property transferred the equity of redemption on 28-8-1936, to the plaintiffs Mt. Sheoraji and Mt. Habiban. They left a sum of Rs. 299/- in their hands for redemption of the possessory mortgage of 1880 and stipulated that the transferee would be liable for payment of whatever amount was found due under that mortgage. No mention however was made of the 1883 mortgage. When Mt. Sheoraji filed a suit _for redemption of the mortgage of 1880 the mortgagee relied on the mortgage of 1883 and claimed that before the mortgage of 1880 could be redeemed the plaintiff had to pay the amount due under the mortgage of 1883 as well. This plea evidently found favour with the trial Court and was affirmed by this Court by an order dated 5-11-1942, with the result that the plaintiffs were required to pay Rs. 3,942/- the amount due under both the mortgages of 1880 and 1883 before the mortgage of 1880 could be redeemed.