SANT RAM LALJI RAM Vs. BHAGWAT DASS

JUDGEMENT

(1.) THIS is an appeal by the defendant-mortgagor against a preliminary decree for sale of the mortgaged property passed by Shri Gurba-chan Singh, Subordinate judge 1st Class, Jullundur on 8th May, 1950, and the only point which arises for decision is whether on the terms of the mortgage in question a decree for sale could legally be passed.

(2.) SANT Ram defendant-appellant made a mortgage of one-half of his agricultural land measuring 121 kanals 4 marlas situate in village Saifabad, Tahsil Phillaur, district Jullundur, for a sum of Rs. 8,000/- by means of a mortgage deed executed on 10th April, 1947 and registered on 11th April, 1947. The deed inter alia provided that the mortgage was to be without possession but later on it provided as under :-

(3.) IN Sochet Singh v. Hadayat Ullah, ILR 13 Lah 508: (AIR 1932 Lah 630) (B), the defendant had borrowed money from the plaintiff and had mortgaged his land by way of security for its payment. The mortgagor was to remain in possession and pay interest twice every year. In case of default the mortgagee was authorised to take possession. A suit was instituted for the recovery of principal and interest due on the mortgage and the defendant inter alia pleaded that the mortgagee was not entitled to have the property sold because of the reason that he was entitled to take possession of the mortgaged property according to the terms of the deed. It was held by a Division Bench of the Lahore High Court that the mortgage must be termed as a simple one and that the mortgagee was entitled to a decree for sale. To the same effect are Puna v. Laxman Prasad, 65 Ind Cas 654 (Nag) : (C) and lingam Krishna v. Manya Sultan, 10 Ind Cas 272 (PC) (D ).