HASAN ALI Vs. LAXMICHAND

JUDGEMENT

(1.) THIS is a second appeal by the defendants-mortgagees against the appellate judgment and decree dated 13-8-1965 Dassed by the District Judge. Udaipur in a suit for redemption.

(2.) THE suit property is situated in village Avad; Tehsil Girwa District Udaipur and bears Municipal number 10/892. Laxmichand. plaintiff, the owner of the suit house, mortgaged this property with possession on 29-9-1937 with Hasan Ali. defendant No. 1 and Nazar AH. father of defendants Nos. 2 to 6 for Rs. 2500/ -. The period of mortgage was stated to be eleven years in the mortgage deed. The mortgagor asked the defendants to take the mortgage amount and leave the property but they did not do it and as such, he instituted a suit for redemption on 21-8-1963 in the court of Civil Judge. Udaipur. The defendants admitted the mortgage and also the mortsase money. But it was pleaded that the Dlaintiff had borrowed more money which came to Rs. 2354/10/9 and by a Khata executed by him on 23-10-1941 it was agreed that the amount will be payable to the mortgagees when he redeems the Drodertv alreadv mortgaged with them on 299-1937. Accordingly, the defendants claimed that the plaintiff mortgagor must pay that amount in addition to Rs. 2500/-and then alone he is entitled to redeem the mortgaged property. On behalf of the defendants it was also claimed that they made certain improvements and spent a sum of Rs. 20/-and the mortgagor is liable to pay that amount as well. Hasan AH and Gulam Hussain defendants alone contested the suit, whereas the other defendants did not nut in appearance and the case proceeded ex parte against them.

(3.) THE learned Civil Judge framed three issues. The defendants save up their claim for Rs. 20/- on account of improvements. The learned Judge after trial found that the subseauent agreement dated 23-10-1941 was not a mortgage, but in fact, it was a charge and the mortgagees are entitled to the amount under the subsequent agreement. He accordingly passed a preliminary decree in favour of the plaintiff against the defendants "jointly and severally directing the plaintiff to pay a sum of Rs. 4854/10/9 on or before the 11th day of March. 1965. Other consequential orders were also passed.