DURGAPRASAD Vs. KALLARAM

JUDGEMENT

(1.) This appeal has been filed by the defendant No. 1/mortgagor against the judgment and decree dated 19-7-2001 passed by Additional District Judge, Sheopurkalan in Civil Appeal No. 12-A/99, whereby learned Additional District Judge affirmed the judgment and decree of the trial Court dated 24-12-1998 passed by Second Civil Judge Class II, Sheopurkalan and dismissed the appeal of the mortgagee.

(2.) The facts of the case are that Kapoor chand (hereinafter referred to as "mortgagor") (since deceased) mortgaged suit house vide registered mortgage deed dated 13-10-1983 in favour of Durga Prasad appellant/defendant No. 1 (hereinafter referred to as "mortgagee"). There was an stipulation in the mortgage deed that if mortgage amount was not returned to the mortgagee within the period stipulated then the mortgagee will be within his right to get the sale deed executed and the mortgage deed would be treated "an agreement to sale." The house was mortgaged for Rs. 10,000/- and Kapoorchand had taken the house on rent. The possession of the mortage house was with Kapoorchand. The appellant/defendant No. 1 (mortgagee) filed a suit for eviction and arrears of rent against Kapoorchand which was decreed ex parte on 3-9-1993. The appellant/defendant No. 1 filed an execution before the Executing Court in Execution Case No. 6/86x93, the whole rent of Rs. 28,519/- was deposited by the "mortgagor (Kapoorchand) on 29-9-1994. The mortgagor further deposited the whole amount of mortgage money amounting to Rs. 10,000/- on 3-10-1994 to the account of mortgagee and filed an application under S. 83 of Transfer of Property Act, 1882 before the First Civil Judge Class II, Sheopurkalan. The trial Court allowed the application vide order dated 5-12-1996 in M.J.C. No. 19/94, released the property. The appellant/defendant No. 1-mortgagee refused to accept the amount deposited by the mortgagor Kapoorchand and filed a revision challenging the order dated 5-12-1996. This Court in Civil Revision No. 43/1997 vide order dated 11-7-1997 allowed the revision application and held that proper course for the mortgagor was to initiate regular civil proceedings. The mortgagor during his life time sold part of the suit premises i.e. one shop to Kallaram vide registered sale deed dated 29-10-1994 and handed over the possession of the said shop to Kallaram. On 24-4-1996 Kapoorchand died. Widow of Kapoorchand, Tulsa Bai plaintiff No. 1 and Kallaram-plaintiff No. 2 filed a suit for redemption of suit house and permanent injunction restraining the defendant No, 1 /appellant for interfering with the possession of the suit house and mortgage deed be returned to them. It was stated in the plaint that the plaintiffs had deposited mortgage money of Rupees 10,000/- on 3-10-1994 and also deposited arrears of rent in lieu of the interest of mortgage money amounting to Rs. 28519/- on 21-9-1994. The appellant/defendant No. 1 raised an objection that the suit for redemption in respect of mortgage house was barred as the same was not filed during the life time of Kapoorchand and that mortgagor failed to comply with the condition of mortgage deed and as such defendant No. 1-appellant became the owner of the house.

(3.) The trial Court after appreciating the oral and documentary evidence found that as per Cl. 4 stipulated in mortgage deed dated 13-10-1983 is inoperative and void and held that he paid the amount of mortgage money as well as interest before filing of suit and was ready to pay rest of the amount, if any found due. The trial Court further found that suit filed by the plaintiff was in time. As per Art. 61-B of the Limitation Act, 1963 as the possession of the mortgage property was not taken from plaintiff and the mortgage property was taken by the mortgagor on rent and as such the suit could be filed within 30 years. The trial Court further held that no relief of possession was claimed by the plaintiff and as such suit was in time. In respect of granting final decree instead of granting preliminary decree it was held by the trial Court that plaintiff deposited mortgage money before the First Civil Judge Class II, Sheopurkalan vide Receipt No. 22 Book No. 7718 dated 3-10-1984 and on 21-9-1994 mortgagor deposited Rs. 28519/- towards arrears of rent in execution proceedings filed by the appellant/defendant vide receipt No. 2 Book No. 7748. Thus, whole amount of rent and mortgage money was deposited by the plaintiffs. The trial Court held that once mortgage money was deposited by the mortgagor on 3-10-1994 then the appellant/defendant No. 1 was not entitled for rent and since there was no dispute regarding depositing the arrears and mortgage money no preliminary decree was required and instead of granting preliminary decree trial Court granted final decree for redemption of mortgage house on 24-12-1998 and directed the appellant/defendant No. 1 to hand over the mortgage deeds etc. within a period of two months from the date of judgment and decree and also held that defendant No. 1 entitled to withdraw the deposited amount. The trial Court also granted decree for permanent injunction restraining the defendant No. 1/ appellant from interfering with the possession of the plaintiffs and that he will also not claim any ownership in respect of suit house.