GANESH MAL Vs. MEGHRAJ

JUDGEMENT

(1.) THIS is a civil regular second appeal by the defendants Ganeshmal and Tarachand alias Otmal against an order of the learned Civil Judge, Sirohi, dated the 1st March, 1961, by which he set aside the judgment and decree of the trial court dismissing the plaintiffs suit as barred by time and remanded it back to the munsiff for disposing of it on the merits.

(2.) THIS was, to start with, a simple suit under Order 21 Rule 63 C. P. C. which was instituted in the Court of the Munsiff Sirohi on the 18th July, 1957, and has had a chequered history principally because it has been mishandled by the parties and the Courts below and the Court of first appeal in particular (Mr. Sardar Singh Civil judge Sirohi ). The plaintiff Nathmal and his son Meghraj alias Maganlal obtained a money decree against defendant No. 3 Pratapchand who is respondent No. 2 in this appeal and took out execution thereof. They attached two houses alleging them to be of the judgment-debtor Pratapchand, the description whereof was given in paragraph 2 of the plaint. Defendants-respondents Ganeshmal and Tarachand alias Otmal raised an objection before the execution court under Order 21, Rule 58. C. P. C. , to the effect that the said houses had been mortgaged to them by defendant Pratapchand for a sum of Rs. 1,500 carrying interest at the rate of eight annas per cent. per mensem with a stipulation that it the mortgage was not redeemed within a period of two years, the mortgaged property will be treated as having been sold to the mortgagees, and as the mortgage had actually not been redeemed within me time-limit specified in the mortgage-deed, the defendants-mortgagees had become absolute owners of the properties in question. The plaintiffs contended that the mortgage had been made to defeat their claim and was without consideration. By its order dated the find August, 1956, the executing court upheld the mortgage and on that view ordered that the attached properties be sold subject to the mortgage. Thereupon the plaintiffs instituted the suit, out of which this appeal arises, on the 18th July, 1957, on the allegation that the mortgage was a collusive one entirely without consideration and had been entered into between defendant No. 3 and defendants Nos. 1 and 2 solely with a view to delay and defeat the plaintiffs' claim. The plaintiffs, therefore, prayed that the mortgage dated the 5th October, 1953, being without consideration and collusive and having been made with a view to delay and defeat their claim be declared to be inoperative against the plaintiffs and that the properties under attachment be held to be liable to attachment and sale in execution of the plaintiffs' decree.

(3.) THE defendants mortgagees resisted the suit. They contended that the mortgage-deed was genuine and for consideration and had not been made to defeat the plaintiffs claim and consequently prayed that the plaintiffs' suit be dismissed.