MURARI Vs. PEHLAD

JUDGEMENT

(1.) This defendant's second appeal against a judgment and decree of reversal has arisen in these circumstances :-

(2.) The plaintiff-respondents brought a suit for declaration that they had become the owners of the suit land. It was alleged by them that the land in suit was mortgaged by the defendant Murari (now represented by his legal heirs) in their favour on 15-5-1963 for Rs. 8500/-by conditional sale. The deed contained a stipulation that in case the defendant-mortgagor failed to redeem the land in dispute within six months i.e. by 15-11-1963, the land mortgaged shall be deemed to have been sold to the plaintiffs for the consideration already received by the defendant. It was alleged that the plaintiffs duly served a notice upon the defendant demanding repayment of the consideration, but the latter did not pay it up in the year of grace. Thereafter the plaintiffs claimed to have applied to the District Judge. Rohtak for issuance of notice to the defendant u/s. 8 of the Bengal Regulation No. XVII of 1806 (briefly called the Regulation). Statutory notice was also duly served upon the defendant. The application was filed by the learned District Judge, Rohtak, on 6-8-1966 since the defendant failed to pay the mortgage amount within the time allotted. The plaintiffs thus claimed that they had become the owners of the land in dispute and prayed for the declaration asked for.

(3.) The defendant, while admitting the transfer, resisted the suit. He denied receipt of any notice of demand as allegedly served by the plaintiffs. He also denied that any notice was served upon him which might have been issued by the District Judge. In the alternative it was pleaded that the notice, if any, issued by the District Judge was not served in the manner required by law inasmuch as no copy of the petition to foreclose or copy of the mortgage deed etc., had been delivered to the defendant as also that the conditions prescribed by Ss. 7 and 8 of the Regulation had not been observed or the proper procedure with regard thereto. He prayed for the dismissal of the suit.