HARI KISHAN Vs. JAWA MAL AND ORS.

JUDGEMENT

(1.) The second appeal is against the decree of dismissal by the trial Court and the appellate Court in a suit for redemption of a mortgage which had been executed by the plaintiff's predecessor in favour of the defendant through a registered instrument dated 14th March, 1953. The mortgage was a mortgage by conditional sale that stipulated, inter alia, the following terms:-

(2.) The suit is filed on a plea that the defendant is in possession of the property and is liable to be redeemed on payment of the amount which he was offering to the mortgagee. The defence was that there was no subsisting mortgage to be redeemed and that the right of redemption had been foreclosed through an order passed by the District Judge pursuant to an application filed under Sections 7 and 8 of the Bengal Land (Redemption and Foreclosure) Regulation Act, 1806 (for short, the Bengal Regulation) that set out a procedure for redeeming a mortgage. The suit went to trial on the respective contentions of parties and the essential issue which was raised was whether there had been a valid order passed by the authority foreclosing mortgage. At the trial, the attempt of the plaintiff was to deny the signature in the summons said to have been issued by the District Judge before the order was issued. An expert had also been examined to disown the signature found in the document of summons issued to the plaintiff's predecessor. The trial Court found and the appellate Court affirmed that there had been a valid order passed foreclosing the mortgage and there was no subsisting mortgage to be redeemed through a decree of redemption.

(3.) In the second appeal, the ground urged among other contentions was that there had been no notice issued by the authority before passing an order and that further the term in the mortgage deed providing for transfer of right to the mortgagee after a period of 3 years amounted to a clog on redemption and, therefore, the clause itself was not valid and the Court ought to have granted a decree as prayed for.