SAYEEDA KHATOON Vs. BIBI SAYEEDA TAHIRA NAHID

JUDGEMENT

(1.) This revision petition has been preferred against the order dated 15 -12 -2000 passed by the learned Execution Munsif, Patna in rejecting Misc. Case No. 9 of 2000 in limine by which the petitioner had claimed for dismissing the Execution Case No. 11 of 1988 as not maintainable. The said Misc. Case was registered on the basis of the petition filed by the petitioner/judgment debtor under Section 47 read with Section 151 of the Code of Civil Procedure raising objection to the effect that the execution Case No. 11 of 1988 cannot be maintainable as the same was filed for executing a preliminary decree passed in Title Mortgage Suit No. 21 of 1987.

(2.) There is a chequered history of the case. One Bibi Habiba Sogra @ Sakina was the owner of the suit property. She sold the property to Md. Eqbal Yusuf from whom the plaintiff -decree holder Bibi Sayeeda Tahira Nahid had purchased the same vide sale -deed dated 12 -1 -1985 but,Bibi Habiba Soghra before sale to Md. Eqbal Yusuf had already mortgaged the suit property through usufructurary mortgage deed dated 30 -7 -1963 for a period of six years on a consideration of Rs. 6,500/ -. The petitioner happened to be the mortgagee. The plaintiff -decree -holder had purchased the suit property for residential accommodation and she was staying in a rented house paying rent to the tune of Rs. 400/ - per month. After purchase the plaintiff -decree -holder tendered the mortgage amount to the defendant -petitioner but she refused to accept the same on this plea or that plea. Then the plaintiff decree -holder filed an application under Section 83 of the T.P. Act before the Sub -Judge, 1st Court, Patna on 22 -8 -1986 and such application was registered as Misc. Case No. 65 of 1986. As per permission granted by the Court the plaintiff deposited the mortgage amount in the Court and then notices were served on the defendant -petitioner to accept the mortgage amount and to return the mortgage deed but it was alleged that the plaintiff -petitioner had refused to accept the mortgage amount and then the decree -holder/plaintiff filed title mortgage Suit No. 21 of 1987 for redemption of the mortgage. The said suit was contested by the defendant -petitioner on various pleas. The mortgage of the suit property had not been denied but it was alleged that the petitioner -defendant had made various developments in the suit property constructed houses thereon and, as such, levied a huge amount of the suit property. Various issues were framed and the vital issues were Issue Nos. 5 and 6, namely Issue No. (5) Whether the mortgage money was validly tendered to the defendants and they refused? (6) Whether the claim of the defendant on account of repair and improvement etc. is legal and whether the defendant is entitled for the same?

(3.) The learned Munsif decided all the issues in favour of the plaintiff -decree -holder and it was ordered in the following manner: That the suit be and the same is decreed on contest but in my opinion, in the present case it would be very hardship upon the mortgagee and hence I am not inclined to award cost of the suit to the plaintiff. The parties will have to bear their own cost. Let a preliminary decree be passed in favour of the plaintiff. (Emphasis supplied by me) and the defendants are directed to withdraw the mortgage money deposited under Section 83 of the T.P. Act vide Challan No, 2318 dated 13 -1 -1987 in the Court of Sub -Judge 1st, Patna, in Misc Case No. 65/ 86 and they are also directed to give vacant possession of the suit premises and to return the original mortgage deed dated 30 -7 -1963 bearing No. 6243 created by Bibi Soghra with the endorsement of the deed of the receipt of the mortgaged amount to the plaintiff within two months from this date failing which the plaintiff will be put in vacant possession of the premises in suitthrough the process of the Court.