NARAIN DAS Vs. RIKHAB CHAND

JUDGEMENT

(1.) THIS is a defendant's second appeal and although the question, involved is short, the narration of a few facts appears to be indispensable in order to show how it emerges. The defendants are the mortgagees with possession of a half share in two shops, the mortgage having been effected in their favour on 19th of March 1920 by Lalchand for Rs. 600/ -. One of the terms of the mortgage was that interest and rent will be equal and will be adjusted against each other. On 19th of August 1930, Lalchand sued for possession of the shops by redemption and succeeded in obtaining a decree in spite of the resistance offered to him by the defendants, on 6th of February, 1934 on payment of Rs. 617/14/6. Nearly 9 years after this decree, an application was made by Rikhab-chand, legal representative of Lalchand, who had in the meantime died, praying for extension of time for deposit of the amount fixed by the decree. The application was rejected on the ground that it was barred by time. In the circumstances, a final decree was not framed in the previous suit.

(2.) ON 23rd of January 1945, Rikhabchand filed the suit out of which this appeal arises, for possession by redemption of the property in dispute. Defendants resisted the suit on all possible grounds. They pleaded that the mortgage was not redeemable as money had not been paid in time, nor had execution been taken out within limitation. Accordingly, the mortgage had extinguished and the defendants had become absolute owners. They also pleaded the bar of res judicata, and in the end prayed that if a decree was passed, they had spent a certain amount of money on repairs which may be included in the decree. Trial Court dis-missed the suit as barred by res judicata and so also the lower Appellate Court. The plaintiff filed a second appeal in this Court, and since the question involved was of importance, it was referred to a Pull Bench and the latter decided on '29th of September 1948' that second suit for redemption was competent and was not barred by res judicata. Accordingly, the suit was sent back to the trial Court for fresh decision on the merits.