KALIKA DUT MISHRA Vs. ABDUL AJIJ MIA

JUDGEMENT

(1.) This second appeal has been preferred by the plaintiffs against the concurrent judgments of the Courts below dismissing their mortgage suit for redemption.

(2.) The suit was filed by the plaintiffs for redemption of the zarpeshgi deed dated the 28th June, 1946, full particulars of which have been given in paragraph 7 of the plaint.

(3.) It is the admitted case of the parties that the present plaintiffs and their ancestors filed a money suit being numbered as Money Suit No. 1 of 1945. The aforesaid money suit was decreed on contest and appeal preferred by Ram-khelawan Chamar and others was dismissed. Thereafter execution case No. 9 of 1946 was filed and the property covered by the aforesaid mortgage deed dated the 28th June, 1946 was auction sold and purchased by plaintiffs on 6-1-1947. Thereafter symbolical delivery of possession was obtained on 13-6-1947, in the aforesaid execution case. The plaintiffs' case was that at the time of delivery of possession they, for the first time, came to know that Ram-khelawan Chamar executed the aforesaid mortgage deed dated the 28th June, 1946 for Rs. 481 (that is after attachment before judgment in money suit No. 1 of 1945 was made on 10-1-1945) in favour of one Pir Mohammad whose heirs and legal representatives are the defendants. The plaintiffs' further case was that thereafter they filed a title suit being numbered as Title Suit No. 1 of 1957 for a declaration that the mortgage deed dated the 28th June, 1946 was illegal and not binding on the plaintiffs as the mortgage deed was executed after attachment before judgment was made in the aforesaid money suit 1 of 1945. The said suit ultimately abated as a whole on account of the death of Kamla Kant one of the plaintiffs. Appeal from the aforesaid order too was dismissed. The plaintiffs, therefore, filed the present suit, namely, title suit No. 281 of 1965 for redemption of the aforesaid mortgage bond. It has been pleaded in the plaint that the money covered by mortgage bond was tendered to the defendants who refused to accept the same. The particulars of the mortgage deed have been given in paragraph 7 of the plaint. The cause of action for the suit has been stated to have arisen on 28-6-1946 when the mortgage deed was executed and also on the 30th Jeth 1359 F. S. when the due date of payment expired and on the 15th Jeth, 1372 F. S. that is on 30-5-1965, when the money was tendered for the last time and refused by the defendants. With the aforesaid allegations the present suit had been filed.