ANGURI DEVI Vs. SMT. GULAB BAI

JUDGEMENT

(1.) AN interesting question of law has been raised in this second appeal which has arisen out of a suit for redemption.

(2.) THE facts are not in dispute. Admittedly, the original defendant no. 3, Raghuwar Dayal, executed a mortgage in favour of Gulab Bai, predecessor -in -title of defendants nos. 1 and 2 on 20.5.1957 for Rs. 1,000/ -with possession. Raghuwar Dayal continued in possession of the accommodation as a tenant. Rent was to be paid in lieu of interest. The property in question was auctioned on 27.11.1968 and the plaintiff purchased it. He obtained actual physical possession from Raghuwar Dayal in those proceedings on 6.1.1969. Raghuwar Dayal thereafter moved an application in the same proceedings claiming that only mortgagor's right had been auctioned and he was in possession as tenant. Hence without redemption actual possession could not be taken. He, therefore, prayed for restitution of possession which was allowed, vide order dated 13.3.69 and possession was restored to Raghuwar Dayal. The plaintiff thereafter sued for redemption. The learned trial Court passed a preliminary decree and decreed the suit on 5.2.1975 and directed the plaintiff to pay amount mentioned in the decree. The plaintiff preferred an appeal and prayed that the decree, passed by the trial Court be modified and the amount which was found due from him be directed to be paid. This appeal was allowed on 3.7.89 and the decree passed by the learned trial Court was modified to the extent mentioned in the operative part of the judgment. The present appeal has been preferred by the defendants as well as son of the original mortgagor Raghuwar Dayal.

(3.) THE two substantial questions of law formulated at the time of admission of the appeal are as under :