VIRENDRAPAL SINGH Vs. LALIT KUMAR

JUDGEMENT

(1.) THIS defendant's second appeal is directed against the judgment and decree dt. 13.11.91 passed by the learned Additional Civil Judge No. 3, Udaipur whereby he has affirmed the judgment and decree dt. 22.9.1989 of learned Munsif and Judicial Magistrate, Udaipur in civil original suit No. 71/92.

(2.) THE facts in brief are that the suit property (described in para 1 of the plaint) was mortgaged by one Mst. Umari W/o Deen Mohammed for Rs. 200/ - on 13.7.1940 with Yar Mohammed defendant No. 2. She executed a will in favour of mortgage Yar Mohammed on 30.6.45. Yar Mohammed is his turn executed mortgage deed in favour of Virendra Pal Singh, the appellant. Yar Mohammad sold this house to the plaintiff -respondent Lalit Kumar and Basant Kumar. The plaintiff -respondent after serving a notice filed a suit for redemption on 24.9.1966. In the written statement the defendant appellant has denied the claim and stated that the real owner of the house was one Sepoy Abdul Rehman who by a sale deed dated 30.11.1989 sold the house to Mst. Bennizan and after her death Mst. Mehkoobzan became the owner of the disputed house, who mortgaged the house on 24.12.1925 with one Syed Mohammad Asad All and who in their turn mortgaged this house with Deen Mohammed on 13.7.1926, the husband of Mst. Umari for Rs. 199/ -. The defendant -appellant denied existence of any will in favour of Yar Mohammad and stated that the so -called will is forged one. The defendant No. 2 Yar Mohammed supported the case of the plaintiffs. On the pleadings of the parties, the learned trial court framed as many as eight issues and the defendant examined nine witnesses including himself and several documents were produced. It is pertinent to note that Yar Mohammed died and the suit proceeded without his L.Rs. being substituted. The plaintiff examined two witnesses and 8 documents. The learned trial court decreed the suit on 13.12.1971 and passed a preliminary decree directing the plaintiff to pay Rs. 200/ - as mortgage money and Rs. 2300/ - the money spent by the appellant for improvement of the said mortgaged property and it was further directed that if the plaintiff fails to deposit this amount within one month, the suit shall stand dismissed. Both the parties went in appeal against the judgment and decree of the learned trial court dt. 13.12.71. The learned Appellate Court dismissed the appeal filed by the appellant and accepted the appeal of the plaintiff but reduced the decreetal amount from Rs. 2300/ - to Rs. 1800/ - and directed the plaintiff to deposit this amount within one month. The appellant filed a second appeal No. 691/79 Virendra Pal Singh v. Basant Kumar in this Court and obtained an adinterim order on 6.1.75 and the same was modified by this Court on 11.8.76. This second appeal was dismissed on 8.6.86. The plaintiff tendered the amount in the learned trial court and prayed that the final decree may be passed of the mortgaged property. Notice was issued to the appellant of this application and reply was filed by him and after hearing both the parties, the learned trial court in pursuance of the decree dt. 22.10.1974 passed a final decree on 22.9.89. Being aggrieved, the appellant has filed appeal which was also dismissed on 13.11.91. Hence, this second appeal.

(3.) IN Sullah Singh v. Sohanlal : [1976]1SCR598 it was held 'that the direction given by the trial court are mandatory under the provisions contained in Order 20 Rule 14 C.P.C. Mere filing of an appeal does not suspend the decree of the trial court and unless that decree is altered in any manner by the court of appeal. In above case trial court granted a preemption decree and certain directions were also given in the decree. An appeal was filed against the trial court's decree, but no stay order was granted by the appellate court and the plaintiff did not deposit the pre -emption amount as directed by the trial court. Then it was held by the Supreme Court that the appellate court should not have extended, the time and the suit should have been dismissed as the plaintiff has not deposited the amount as per terms of the trial court's decree.