SARDARILAL Vs. RAMLAL

JUDGEMENT

(1.) THIS is a defendant's appeal from the appellate decree of the learned District judge, Ferozepore, granting a preliminary decree for redemption to the plaintiff in respect of suit property which consists of a shop on payment of Rs. 3500/- on or before the 28th of February, 1961.

(2.) A shop situated in Fazilka was mortgaged with possession by Uttam Chand with the appellant Sardari Lal on 24th of August, 1955. As a decision of this case turns very largely on the terms of the mortgage deed, Exhibit D. 1, of the 24th of august, 1955, its essential terms may be reproduced. It appears that some years prior to the execution of this deed, Sardari Lal had been a tenant of this shop under Uttam Chand. The term of the mortgage was one year and the sum of Rs. 3500/- was paid before the Registrar. The possession of Sardari Lal as a tenant was to be converted into possession as a mortgagee and be was entitled thereafter either to live there himself or to have some other tenant. Uttam Chand was not entitled to receive any rent nor was any interest to be received by Sardari lal as a mortgagee. The rent and interest were to equalise each other. After the expiry of the year, the mortgagor Uttam Chand could get the shop redeemed any time he liked. If Uttam Chand, however, failed to redeem the shop the mortgagee could recover the mortgage amount by sale of property and also by a personal decree against the mortgagor.

(3.) UTTAM Chand died on 30th of December, 1959, and his legal representatives, who are parties to this litigation, thereafter sold the equity of redemption to Ram lal respondent subject to the mortgagee rights of Sardari Lal. Ram Lal did not take long to file a suit for recovery of the shop whose equity of redemption he had purchased. This suit was brought on 9th of February, 1960 for redemption of the shop on payment of Rs. 3500/ -. Though the suit was resisted on other grounds by sardari Lal, the principal line of defence was that being a tenant he could not be ousted from the shop in a suit for redemption. The trial Judge, while decreeing the suit of the plaintiff for redemption on payment of Rs. 3500/-, directed that he shall be entitled only to symbolical possession of the shop. Ram Lal went up in appeal before the District Judge who granted a preliminary decree for redemption on payment of Rs. 3500/- and actual possession was to be delivered to the plaintiff. The condition with regard to the symbolical possession did not find a place in the decree of the District Judge, Ferozepore.