SAMPATI DEVI Vs. JAGANNATH

JUDGEMENT

(1.) Both these first appeals have been filed under Sec. 96 CPC, assailing judgment and decree dtd. 10/10/1990 passed in Civil Suit No.91/1980 (92/1979) passed by the Court of Additional District Judge No.5, Jaipur City, Jaipur whereby and whereunder civil suit for redemption of mortgaged property and in alternative, for partition and redemption of half of the mortgaged property as also for delivery of possession, filed by plaintiffs has been decreed and a preliminary decree has been passed against defendants No.1 and 2 to the effect that on making payment of half of the mortgage money of Rs.19,999.00 and half of the amount incurred in improvement/repairing of the mortgaged property i.e. 19,722/- along with interest thereupon, plaintiffs will be entitled for possession of the half portion of the mortgaged property after partition of same and further, to commence the partition, the Commissioner has been ordered to be appointed.

(2.) Plaintiffs being legal representatives of one of the mortgagor have challenged the impugned judgment dtd. 10/10/1990 by way of filing Civil First Appeal No.47/1991 claiming that decree for redemption of mortgage should be passed in respect of whole of the mortgaged property, whereas on the contrary, defendants No.1 and 2, who are mortgagees, have challenged the impugned judgment dtd. 10/10/1990 by way of Civil First Appeal No.20/1991 basically on the ground that though they have admitted the execution of mortgage deed by them and their status as mortgagees in the suit property, nevertheless they have resisted a decree for redemption of mortgage even in respect of half portion of the mortgaged property, alleging, inter alia, that firstly the full amount as incurred by them in improvement/repairing of the mortgaged property i.e. Rs.32,485.00, has not been ordered to be refunded and instead of only an amount of Rs.19,722.00 has been ordered to be refunded. Secondly, defendants No.1 and 2 acquired right absolutely over the whole of mortgaged property, therefore, the suit for redemption of mortgage has wrongly been decreed.

(3.) Both first appeals are tagged and heard together and would stand decide by this common judgment.