MANGE RAM Vs. PARMESHRI DEVI

JUDGEMENT

(1.) This is defendant's regular second appeal. Plaintiff filed a suit for declaration to the effect that property mortgaged by the defendant with possession vide mortgage deed dated 24.12.1973 has not been redeemed on payment of mortgage money within two years of the deed of mortgage and on the expiry of this period the plaintiff is entitled to have the mortgage fore -closed and so has become owner of the same. It is the case of the plaintiff that the defendant was owner of a double story shop and mortgaged the same with possession with the plaintiff for a sum of Rs. 15,000/ - vide registered mortgage deed dated 24.12.1973. As per terms duly agreed between the parties and as well as stipulated in the mortgage deed the defendant could get the shop redeemed within two years from the date of mortgage failing which the plaintiff was entitled to have the same fore -closed. It is further case of the plaintiff that the shop was rented out to the defendant and so the rate of rent was to equalise the interest upon the mortgage. Since the defendant failed to have the shop redeemed within the stipulated period, the plaintiff sent a registered A.D. demand notice dated 24.2.1976 calling upon the defendant to make the payment of mortgage amount. Defendant, however, did not deposit the amount nor replied to the notice and so the plaintiff made a petition to the learned District Judge, Rohtak on 23.3.1976 under the Bengal Regulation Act, 1806. Defendant was duly served with the notice who came present on 24.4.1976 and filed written statement. Since the prescribed period of one year to redeem the shop has expired so the right to redeem has been extinguished and so the defendant has lost all his rights in the shop. This way the plaintiff has become the owner of the suit property.

(2.) Defendant in his written statement denied the demand notice issued by the plaintiff. Defendant further denied the receipt of any valid notice to pay or deposit the amount due as per mortgage deed. Otherwise also notice of fore -closure as per Ss. 7 and 8 of Bengal Regulation No. XVII of 1806 has not been duly and validly observed and so the present proceedings cannot and do not have the effect of fore -closure of the mortgage finally. In addition to this the defendant averred that he is not the owner of the property in dispute and so the conditional mortgage effected and executed by the defendant is quite unauthorised and illegal. Plea was also taken to the effect that Shri Sardara Singh, father of the defendant is a necessary party to the suit and that the suit is bad on account of non -joinder of parties.

(3.) On the pleadings of the parties, the following issues were framed: -