SURAJ BALI Vs. RANG BAHADUR SINGH

JUDGEMENT

(1.) The mortgagor did not pay the amount as required by the preliminary decree, nor did the mortgagees apply for a final decree and the matter rested at that.

(2.) The trial Court dismissed the suit holding that the right of the plaintiffs to redeem had been extinguished by the preliminary decree mentioned above, that the claim for redemption was barred by res judicata that the plaintiffs have failed to prove the mortgage set up by them, and that the claim was barred by limitation. It left other issues undetermined. The lower appellate Court held that the earlier preliminary decree dated 7th September 1907, did not extinguish the right of redemption, that the defendants had failed to prove that the mortgage was more than 60 years' old and that, therefore, the claim was barred by limitation. It, therefore, set aside the decree of the trial Court and having decided the remaining issues in the case passed a decree for redemption without any payment.

(3.) It is contended on behalf of the defendants that the right to redeem was extinguished by the decree of the year 1907 and further that there is no definite finding by the lower appellate Court to the effect that the claim was within limitation and as such that Court was not justified in rejecting the defence and ordering redemption without recording a definite finding on the question of limitation.