HANUMAN PRASAD GUPTA Vs. JAGYA BHAN GUPTA

JUDGEMENT

(1.) By this appeal the appellant/ plaintiff has assailed the order dated 16-10-1997 passed by the trial Court rejecting his application filed under Order 39, Rules 1 and 2 read with Section 151, CPC.

(2.) A suit for specific performance of contract and to declare the sale-deed dated 4-9-1997 executed by respondent No. 1 in favour of respondent No. 2 to be null and void, has been filed by the plaintiff/appellant. The plaintiff has also filed an application under Order 39, Rules 1 and 2, CPC, praying therein that till the disposal of the suit the defendants may not create any hindrance in the peaceful possession of plaintiff on the suit property.

(3.) According to the plaint averments and the application filed under Order 39, Rules 1 and 2, CPC, the defendant No. 1, Jagya Bhan Gupta, was the owner of the suit property. Since he was in need of money as a result of which on 27-6-1996 he mortgaged the suit property in favour of plaintiffs father Bhola Prasad Gupta and delivered possession to him. The possession of plaintiffs father on the suit property was of a mortgagee till 27-6-1997. The suit property was mortgaged for 45 days only, however, there was a condition in the mortgage deed that in case defendant Jagya Bhan fails to repay the loan amount with interest, the mortgagee shall retain possession of the suit property. Since defendant Jagya Bhan did not repay the loan amount along with interest within the stipulated period of forty-five days, as a result of which, plaintiffs father insisted the defendant to get the property redeemed, but, according to the defendant, he was unable to get the property redeemed without selling it. He further requested plaintiffs father to abandon the amount of interest so that he may get the property sold and would be able to pay the loan amount. The request was accepted by plaintiffs father.