NATHI Vs. SHANKER

JUDGEMENT

(1.) THIS is a civil second appeal in a suit for redemption of a house described in para 2 (ch) of the plaint.

(2.) THE relevant facts giving rise to this appeal may briefly be stated thus - On 27-11-14 Jasraj and his son Sardarmal mortgaged the house in dispute for Rs. 151/-to Naula and Dhanna. It was a usufructuary mortgage. On 12-1-27 Chunni Lal, his son Sukhdeo and Shanker purchased the mortgagee rights from Naula and Dhanna. It appears that after the death of Jasraj and Sardarmal, Dhanraj (defendant No. 6 in the present suit) brought a suit for redemption of the mortgage against Shanker and the legal representatives of Sukhdeo and Chunnilal who are defendants Nos. 1 to 5 in the present suit. In that suit, Sardarmal's another son Hastimal or his legal representatives, namely, the plaintiffs, were not impleaded as parties to the suit. THE suit filed by Dhanraj was decreed and he was ordered to redeem the mortgage by depositing mortgage money amounting to Rs. 151/- and Rs. 200/- by way of expenses lor repairs and improvements total Rs. 351/-, within three months from the date of the decree, that is, 6-1-48. Dhanraj failed to deposit the said amount with the result that the mortgagees moved an application to the court for passing a final decree for foreclosure in their favour. This application was allowed and a final decree for foreclosure debarring Dhanraj from redeeming the mortgage was passed in favour of the mortgagees on 6-4 48. 0n 7-10-63 the plaintiff-appellants who are the heirs of Hastimal s/o Sardarmal brought the present suit for redemption of mortgage against the mortgagee defendants Nos. 1 to 5 and also impleaded Dhanraj as defendant No. 6 THE suit was contested on the ground inter alia that no right of redemption subsisted in the plaintiff-mortgagors as the mortgagees in the suit filed by Dhanraj had obtained a decree for foreclosure. THE learned trial Judge negatived this contention holding that since the plaintiffs were not parties to the previous suit, they were not bound by the judgment in that suit THE learned Judge further held that the plaintiffs had half share in the mortgaged property and since the decree for foreclosure was passed against Dhanraj, the latter's right to redeem to the extent of his half share in the property was extinguished. THE trial court in the result decreed the suit for redemption of half share in the house on payment of half the mortgage money i. e. Rs. 75. 50 P. and half of the cost of the improvements i. e. Rs. 150/-total Rs. 225. 50 P. Aggrieved by the said decree, the plaintiff-mortgagors as well as the defendant-mortgagees preferred separate appeals which were dismissed by the learned Senior Civil Judge, Udaipur, by his judgment dated 28-7-66. THE plaintiff-mortgagors have now come up in second appeal.