SUGAN CHAND Vs. DINA NATH

JUDGEMENT

(1.) This is an appeal under Order 43, Rule 1 (r) of the Code of Civil procedure, from the order dated April 20, 1979, by the Additional District Judge, Sri Ganganagar, whereby the learned Judge dismissed the plaintiff's application under Order 39, Rule 1, C.P.C. in a suit for mortgage money by sale of the mortgaged property.

(2.) The plaintiff-appellant brought the suit against the defendant-respondents for Rs. 81,000 on the basis of a mortgage-deed dated October 23, 1975, whereby, in lieu of a loan of Rs. 75,000, the defendants had mortgaged Plot No. 6 measuring. 6300 sq. ft. situated in Industrial area near Ganganagar Sugar Mill, Sri Ganganagar, along with the building standing thereon and machinery fitted therein. There was a stipulation in the mortgage-deed that the mortgagors would redeem the mortgage within two years, failing which the mortgagees would be entitled to recover the mortgage money by sale of the mortgaged property. Since the mortgagors had failed to repay the amount, the mortgagees claimed Rs. 75,000 as principal and Rs. 6,000 as interest, total Rs. 81,000. The plaintiff also made an application that the defendants were intending to dispose of the mortgaged property with a view to defraud the creditors, and hence he prayed for issue of a temporary injunction against the defendants restraining them from selling the mortgaged property including the machinery.

(3.) The mortgagors admitted the execution of the mortgage-deed, but denied that they had received consideration for the same. Their plea was that the plaintiff had got the mortgage-deed executed by them on the assurance that he would, later on, pay the mortgage money, but, in fact, the plaintiff never paid the same. They also pleaded that there had been loss in their business and therefore they first tried to let out the factory, but the plaintiff did not allow them to do so and hence they now want to sell the machinery fitted in the factory though they have no intention to sell the plot or the building standing thereon.