KANWARANI MADNA VATI Vs. RAGHUNATH SINGH

JUDGEMENT

(1.) This R. F. A. 1 of 1965 and the cross-objections and R. F. A. 7 of 1966 arise out of a suit under the provisions of Order 34 of the Civil P. C. for the recovery of Rs. 16,000/- with costs and future interest by sale of mortgaged property described in para. 1 (g) of the plaint and further that in case the sale proceeds fall short of the amount due to the plaintiff for a personal decree to that extent or in the alternative for possession of the mortgaged property and a personal decree for interest and costs filed by the plaintiff against the defendant No. 1.

(2.) The facts as emerge from the plaint are that the plaintiff is the son of Thakur Ram Bass proprietor of Marina Hotel, Simla, Defendant No. 1 is the widow of Kr. Mohan Singh of Junga, presently residing in Kasumpti Bazar of Simla District. She borrowed Rs. 13,400/-from the plaintiff against the security of the property mentioned in the mortgage deed, PA. This property consisted of several Khasra numbers and buildings thereon. The mortgage was effected on 27-9-1950, but the same was registered on 10-10-1950. She had promised to pay back the loan before the end of May 1951 without interest and get the mortgaged property redeemed. In case she failed to pay the amount before the end of May 1951, it was provided that the plaintiff would be entitled to get possession of the entire property at once without any objection from the mortgagor. Further, in case she failed to deliver possession to the mortgagee, he was at liberty to file a suit for possession and in that case she would be liable to pay costs and also profits and income, etc. realised from the property by way of interest, and for the payment of costs and interest she was personally liable apart from the mortgaged property. Since she failed to deliver possession or to make payment of the money, the plain-tiff filed this suit and averred that the amount of interest worked out was at Rs. 11,055/- but he was contented to claim only Rs. 2,600/- and he, therefore, prayed for a decree.

(3.) It was also pleaded that after the mortgage in favour of the plaintiff, defendant No. 1 created a further mortgage in favour of Thandu Ram (defendant No. 2) of the suit property on 15-12-1950 against Rs. 6,000/- and that mortgage deed was registered on 20-12-1950. The plaintiff came to know about this only a fortnight before the filing of the suit. It was also stated that defendant No. 1 had also sold the house and the land measuring 7 biswas in Khasra No. 74, Khata No. 57 and Khatauni No. 72 in village Bharai to one Mst. Reshmo (defendant No. 3) and that she was in possession of the house and the land attached thereto. About this fact also the plaintiff learnt only a fortnight back of the filing of the suit.