DEVISAHAI Vs. SARDAR GOVINDRAO MAHADIK

JUDGEMENT

(1.) The appellants have preferred this appeal, aggrieved by the judgment and decree dated 1-10-1986 passed by the District Judge, Indore in C. S. No. 19-A of 1986 directing the appellant to deliver possession of the suit house to respondent No. 1 (plaintiff No. 2) and further directing the appellants to pay a sum of Rs. 14,384/- to the respondents.

(2.) The brief facts of the case relevant for decision of this appeal are that one Govindrao Mahadik (deceased) represented by respondent No. 1 executed a possessory mortgage on 26-11-1929 for Rs. 10,000/- in favour of one Devi Sahai, who is dead and represented by his legal representatives, arrayed as respondents Nos. 2(a) to 2(f) and respondent 2(f) having died represented by 2(f) (a) to 2(f) (h). Gyarsilal, original plaintiff No. 2 and Govind Rao Mahadik original plaintiff No. 1 filed Civil Suit No.14 of 1951 in the court of the District Judge, Indore for redemption of the aforesaid mortgage which was in respect of house No.41 on 22-2-1951. The plaintiff No. 2 Gyarsilal is the purchaser of the mortgage property from plaintiff No. 1 under the registered sale deed Ex. P. 1 dated 14/10/1950. After the trial of the suit, vide judgment and decree dated 10-1-1959 the Second Additional District Judge, Indore passed a preliminary decree in favour of the plaintiff against the defendants with costs for redemption of the house making further order therein for taking of accounts to ascertain what is, due to the defendants from the date of the mortgage to the date of decree for principal and interest on the mortgage, costs of the suit and other posts along with charges and expenses properly incurred by the defendants up to the date of the decree in respect of his mortgage security together with interest thereon. A Commissioner was directed to be appointed to take the accounts and the amount due made payable within six months of the date on which the accounts are confirmed. and countersigned by the court.

(3.) Aggrieved by the aforesaid judgment and decree of the Additional District Judge a first appeal was filed before this court which was registered as F. A. No. 14 of 59. Vide, judgment dated 5-3-1964 this court allowed the appeal of Devi Sahai holding him entitled to the benefit of the doctrine of part performance of the contract as against the plaintiffs on a condition of payment of Rs. 24,000/- to the second respondent it that appeal (Gyarsi lal) with interest at the rate of Rs. 4/- per cent par annum from the date of delivery of possession to him as vendee till the date of payment or deposits the same in the trial court. If the deposit is not made the appeal was ordered to be dismissed with costs.