MARUTI BABAJI Vs. MANOHAR

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against an order passed by the Assistant Judge, Sholapur, confirming the decree of the Subordinate Judge of Barsi in Civil Suit No. 202 of 1937 dismissing the plaintiffs' suit with costs.

(2.) THIS was a suit filed by the plaintiffs to redeem a mortgage executed by their ancestor in the year 1872. The mortgage was a usufructuary one. The plaintiffs" father and other heirs of the original mortgagors applied to the conciliator under Section 39 of the Dekkhan Agriculturists Relief Act, 1879, for redemption of the mortgage. The heirs of the mortgagees then claimed that Rs. 7,758 were due on the mortgage, but the parties eventually came to a settlement before the conciliator. The terms of the settlement were incorporated in the conciliator's award, exhibit 47, which provided for the payment of Rs. 5,200 by annual instalments of Rs. 200 each and further stated that on default in the payment of two instalments, the applicants' i. e. , the mortgagors' right to redeem the property was not to remain. Possession of the lands, which were with the mortgagees, was to be continued and the mortgagees were to appropriate the income of the lands towards the interest. The sum of Rs. 5,200 was made repayable by twenty-six instalments, and on full payment of the amount the possession of the property was to be restored to the mortgagors. THIS kabulayat was accepted by the parties and was sent to the First Class Subordinate Judge of Sholapur under Section 44(1) of the Dekkhan Agriculturists' Relief Act. THIS was Suit No. 74 of 1888. In response to the Court's notice, the mortgagors appeared and admitted the kabulayat. The mortgagees did not appear, and the Court eventually ordered on February 5, 1889, that the kabulayat be filed. The mortgagors failed to pay the instalments as agreed upon. In the year 1894, the mortgagees applied by Darkhasti No. 1690 of 1894 to the Court for the foreclosure of the mortgage. But the Court held that as the mortgage was a usufructuary one, Section 93 of the Transfer of Property Act, as it then stood, did not apply and that it was not necessary to make a fresh order for making the previous order absolute. The application was, accordingly, dismissed. THIS order was passed1 although the mortgagors themselves had appeared and had raised no objection for granting the order of foreclosure that was prayed for therein. Forty-three years thereafter the heirs of the mortgagors filed the present suit asking for redemption of the original mortgage.

(3.) AGAINST that order an appeal was filed in the District Court of Sholapur and was heard by the learned Assistant Judge. He held that although there was no bar of res judicata, the right to redeem was extinguished and that, therefore, the plaintiffs' suit for redemption was not maintainable. He, therefore, confirmed the decree of the lower Court and dismissed the appeal with costs. AGAINST that order the plaintiffs have come in second appeal.