HARGOVIND Vs. BALMUKUND

JUDGEMENT

(1.) This is an appeal under Clause 10 of the Letters Patent against the judgment and decree dated 8-10-1986, passed by a learned Judge of this Court in First Appeal No. 52 of 1978, reversing the judgment and decree dated 20-5-1978, of dismissal of the suit for redemption of mortgage, passed in Civil Suit No. 4-OA / 76, by the District Judge, Morena.

(2.) The factual matrix, in brief, are these. A deed as respects mortgage (Ex. P/3) dated 21-2-1947 of suit properties was executed by the plaintiff/respondents in favour of defendant/appellant and his father for a consideration of mortgate-money of Rs. 15,000/-. It was agreed that instead of interest, the rent of Rs. 75/- per month of the suit-shop equal to interest, shall be paid by the ' mortgagors. Relevant clause has been quoted in para 4 of the impugned judgment which we reproduce:

(3.) The mortgagors, on the said term, on the same day, executed a rent-note. The mortgagors fell into arrears and so the landlord mortgagee instituted a Civil Suit (No. 166 of 1950) for the recovery of rent, wherein, on 17-2-1951, a decree for Rs. 1,263/- (Ex. D/6) was passed. According to defendant/ appellant, the mortgaged property was put to auction in execution of the decree which, the defendant /mortgagee purchased for Rs. 200/- by Court auction. As no one objected to auction sale, the Court vide order dated 18-3-1953 (Ex. D/3) finalised the sale extinguishing the right of ownership of the house and dismissed the execution of the decree in full satisfaction. It would be appropriate to mention here that the identity of the house by giving its particulars is not specified in the order nor a sale certificate in pursuance of Court sale, registered or unregistered was filed, by the appellant/defendant in the Court. Against Court sale, the mortgagee/ defendant instituted a suit (Civil Suit No. 119 of 1956) for recovery of possession of the house based on the rent-note. This suit was decreed on 20-10-1958 vide Ex. D/7 and in execution of the decree, possession was. delivered to the mortgagee / defendant. Thereafter, the mortgagee instituted another suit in the Small Cause Court for arrears of rent, wherein a decree was passed vide judgment dated 22-3-1960 (Ex. D/8).