DES RAJ Vs. BANNA SINGH

JUDGEMENT

(1.) The counsel for the petitioner states that it is not a suit for foreclosure as envisaged by Order 34 of the Code of Civil Procedure. He also states that it is not a simple suit for declaration because the decree passed therein is not executable.

(2.) It is contended that since it is a suit for recovery of Rs. 51,327.50 by sale of property as envisaged by Order 34 rule 4 of the Code of civil Procedure which is further apparent from the head note of the impugned order hence the; finding by the trial Court that it is a Suit for recovery of the amount is not sustainable. It is not a finding of fact arrived at but since it is a finding based on the interpretation put on the legal provisions, the same can be set aside and is liable, to be set aside. It, is further contended that the facts in dispute do not fall within the domain of law, would not fall within the facts considered in the judgment cited. It is contented that agricultural land measuring 64. Kanals was mortgaged without possession with Niranjan Singh for Rs. 45,000/- by the respondent. The interest was settled at the rate of 1-1/2 per cent per mensem on the principal amount Further the undisputed terms of mortgage were that no redemption would be affected within six months, and that The amount could be recovered only after a lapse of two years Niranjan Singh transferred his, interest to the petitioner. The mortgagor sold 32 Kanals of land out of the land in dispute. The vendee on 12th January, 1984 redeemed their sham of the land by paying proportionate mortgage money.

(3.) Presently, the suit was brought, for recovery of Rs. 24,500/- mortgage money and Rs. 26,827-50 as interest at the rate of 1-1/2 percent per mensem till the date of filing of the suit, by sale on the remaining land measuring 32 Kanals as detailed in the plaint.