RAMESHWARDAS Vs. JAGANNATH

JUDGEMENT

(1.) THIS is plaintiff's appeal against the dismissal of their claim for Rs.21,642.10P./ - by the trial Court.

(2.) THE plaintiffs are brother, and sister, their father Khemraj died some years back. The defendants 1 to 3 are sons of Sitaram and the defendant No. 4 is their cousin. The plaintiff No.1 and his father from time to time gave loans amounting to Rs.11,853/ - and 6 annas to Sitaram who was then the Karta of the joint family of the defendants for purchased of certain properties and it was agreed that a deed of mortgage would be executed mortgaging the properties purchased. However, on 13.10.1944 Sitaram died and after his death a registered agreement, Ex. P.7, was executed by the defendants on 20.11.1944 agreeing to execute a mortgage deed in favour of the plaintiff No.1 and his father for the loans advanced by them mortgaging certain proprietary rights in Chhota ghas lands and also mortgaging Sir and Khudkasht lands as detailed in the said agreement. As per the agreement, the plaintiff and his father were entitled to foreclose the mortgage if the loans were not repaid by 2.5.1950. Since the defendants failed to execute a mortgage deed, the plaintiff No. 1 and his father brought Civil Suit No. 4 -B of 1947 for specific performance of the said agreement or in the alternative claimed refund of the consideration. The claim for specific performance alone was decreed by judgment dated 24.4.1948, Ex. P. 4. In that judgment it was held that the defendants were ever ready and willing to perform their part of the agreement but no registered document could be executed as the plaintiffs were insisting for specific performance outside the terms of the agreement. The plaintiff No.1 and his father preferred First Appeal No. 77/1948 in the High Court of Judicature at Nagpur and the appeal was dismissed on 29.7.1955 vide judgment Exi.D,3. In the meantime, M.P. Abolition of Proprietary Rights Act 1950 (No.1 of 1951) came into force on 31.3.1951 but the effect of the said Act was not considered by the High Court. The plaintiff and his father then filed an execution proceeding for specific performance as decreed and during pendency of the execution, application the plaintiff's father Khemraj died and in his place the plaintiff No. 2 was impleaded. However the execution was dismissed as infructuous on 17.1.1960 by the executing Court. Thereafter, the plaintiffs filed another execution application and therein an objection was raised by the defendants that the decree has become void and un -executable by virtue of the Abolition Act and the decree cannot be executed. The objection was upheld by the executing Court as per its order dated 27.11.1964 Ex.P.1, holding that all proprietary rights are vested in the state and that the decree under execution for specific performance of the agreement to mortgage has become void and unenforceable after coming into force of the M.P. Abolition of Proprietary Rights Act. 1950 by relying on a decision of the Supreme Court in Haji S.K. Subhan v. Madhorao [AIR 1962 SC 1231]. The executing Court also rejected the prayer of the plaintiffs (or refund of the consideration by saying that no such relief can be granted by the executing Court which has to execute the decree as it is However, the executing Court found that a part of the decree was executable by observing as under: -

(3.) THE only questions for consideration in this appeal are (i) whether it can be said that the only advantage obtained by the defendants under Ex. P.7 was the amount of Rs.800/ - advanced at the time of execution of the agreement and (ii) whether the suit is barred by limitation.