BIMLA DEVI Vs. SURINDER KUMAR

JUDGEMENT

(1.) This second appeal under section 100 of the Code of Civil Procedure arises out of the decree and judgment of the learned District Judge, Solan and Sirmaur Districts at Nahan, passed on July 23, 1985, in Civil Appeal No. 40/N/13 of 1984, whereby the plaintiffs suit for possession of the property in dispute by way of redemption, as decreed by the trial Court, was held to have been satisfied because of the delivery of possession thereof by the defendant in favour of the plaintiff. However, the further relief for recovery of Rs. 25,000 as damages for illegal use and occupation of the shop in dispute, though decreed by the trial Court, was dismissed.

(2.) The facts, which are necessary for understanding the controversy between the parties in this appeal, may be shortly stated as follows :

(3.) Plaintiff filed a suit for redemption of a mortgaged shop in dispute located in khasra Nos. 1632 and 1634 situate in Bara Chowk, Nahan Town, vide registered mortgage deed dated 4 -8 -1969 (Ex. PB) in favour of the defendant for a sum of Rs. 8,000, As per the terms and conditions of the deed, the rent payable by the mortgagee as lessee, was agreed to be adjusted towards interest payable on the mortgaged property inasmuch as per the terms, interest was agreed to be charged at Re. 1 per month. As per the other terms, the mortgagee could effect white washing at his discretion. However, he could not effect repairs in the shop. Regarding it, the recital therein is that in case of any repairs, the same was to be carried out by the plaintiff immediately and in case the mortgagee wanted to carry out the same, he was required to serve a notice upon the mortgagor, i. e. the plaintiff and only after such notice, the mortgagee was entitled to conduct the repairs. It was further agreed that the mortgagee would maintain correct and clear accounts of such repairs, which he would be entitled to recover with interest at the rate of 12% per annum for the mortgagee.