RAJA RAM THAKUR Vs. JOSEPH NETAL &ORS.

JUDGEMENT

(1.) Since a learned argument has been advanced in support of the application Under Order 39 Rule 1of the Code of Civil Procedure, I propose to deal with the contention with some care. There is no dispute to the fact that the appellant was a mortgagee in respect of the suit property and the respondents were mortgagors, Respondent nos. 1 and 2 had executed a deed of mortgage on 3.7.70 in favour of the appellant. Before, however, the said mortgage statutorily stood determined it is stated by the Learned Counsel for the appellant, that respondent no. 1 for himself and on behalf of other respondents executed a contract for sale in favour of the appellant. The respondents, however, failed to carry out their part of the contract and accordingly on 6.5.1977 the appellant filed a suit for specific performance of the contract.

(2.) Mr. Dwivedi, Learned Counsel for the appellant has submitted that since the mortgage money was kept in amount for execution of the contract for sale and another sum of Rs. 6,000/ - was paid by the appellant to the respondent no, 1 on the execution of contract for sale, the appellant's possession as mortgagee stood transferred as his possession in part performance of the contract. He has submitted that the Court below in its judgment has found that a written agreement has been duly executed by the respondent no. 1 in favour of the appellant and the appellant bad paid a sum of Rs. 6,000/ - to the respondent no. 1 and the execution of the contract for sale is not in doubt. He has submitted that the appellant has been non -suited on the ground that the agreement was executed by respondent no, 1, who was not competent to act as representative of the other -Co -sharers and thus no alienation of the property could be made by him on behalf of other respondents.

(3.) Before I advert to examine the correctness of the contentions raised by Mr. Dwivedi, I May also make a note of another fact namely the fact that under the Money Lenders Act the mortgage stood redeemed on 3.7.77 and order has already been passed by the competent authority under Sec. 12of the Money Lenders Act to deliver possession of the mortgaged property to the mortgagor (respondents).