SUNDARLAL HANSRAJ MARWARI Vs. MAHEBUB KHAN MOUZADAR KHAN

JUDGEMENT

(1.) THE facts in this appeal are complicated but once they are mastered a simple question emerges for consideration. The appeal arises out of a suit for redemption of an anomalous mortgage. Its provisions are as follows: The debt is made payable by instalments, and there is an exigibility clause which provides that the whole will be payable at once if there are three defaults. The mortgage then continues-if the money is not paid as above, then, the mortgagee may take possession of the mortgaged property and use the usufruct, first to pay off the interest, and the rest to pay off the principal. The deed states that the mortgagees are to remain in possession until the debt is satisfied, The mortgagors were four in number - it is not necessary to set out their names - and the mortgagee was one Annaji. The date of the mortgage is 20th January 1895. The mortgagee Annaji brought a suit on this mortgage (civil Suit No. 57/1900) for possession according to the terms of the deed. This suit was decided on 26th April 1902. Exhibit P-9 is the decree. The following clauses in the decree are relevant: Judgment is passed for plaintiff for Rs. 2463-3-0 and costs to be paid by defendants. In default the mortgaged property as given below will be put into plaintiff's possession until satisfaction of the decree.... It is also ordered that the plaintiff should file accounts every year in April showing the income and expenditure in respect of the property put into his possession.

(2.) ANNAJI assigned this decree to the predecessors of the present defendants-appellants on 25th January 1905 (the assignment is actually to a shop but as a shop is not a legal entity, the assignment must be regarded as having been made to the owners of the shop and those owners are the predecessors of the present defendants). After this a second possessory mortgage was executed in favour of the assignees (that is to say, the predecessors of the present defendants). This deed is dated 25th September 1905, but we are not concerned with that mortgage in this suit. Possession in pursuance of the decree Ex. P-9 was obtained out of Court. But after that some of the mortgagors wrongfully dispossessed the mortgagees. Therefore, the present defendants' predecessors sued those of the mortgagors who had dispossessed them in Civil Suit No. 54 of 1918 for possession and for damages. The defendants there did not represent the whole of the mortgagors but the suit as stated above was only against some of them, namely, those of them who had dispossessed the present defendants' predecessors. This suit was decided in the year 1914 and a decree for possession and damages was passed in favour of the present defendants' predecessors.

(3.) THE first Court held that the debt was not satisfied but this was set aside by the District Judge who held that not only was it satisfied but that the mortgagees had to pay something to the mortgagors. This decision was upheld in second appeal (S.A. No. 423-B/27). The previous application of 27th April 1922 had been made by two of the representatives of the mortgagors. On 4th October 1933, the present plaintiffs representing other mortgagors filed a similar application, also in that suit, under Sections 47 and 144, Civil P.C. This application was numbered M.J.C. 141/33. It was dismissed on 2nd March 1935 on the ground that it was barred by time. On appeal the District Judge confirmed that decision and there was then a second appeal to the High Court. The decision of the High Court is given in Miscellaneous Appeal No. 161/36 and is dated 3rd February 1939. It is Ex. P-13. The High Court upheld the decision of the lower Courts and came to the conclusion that in so far as the application was under Section 47 it was barred by time. It also said: "If the present appellants wish to bring a suit for redemption of the mortgage they are at liberty to do so." It is clear to my mind that that sentence does not affect the rights of the parties one way or the other. The High Court did not decide that such a suit, if brought, would lie. Nor did it decide that such a suit would not be possible. The question is consequently an open one before me. The suit referred to was brought. It is the present suit. It is brought by the successors-in-interest of some of the heirs of the original mortgagors and is for redemption. The question is whether such a suit lies. In Raghunath Singh v. Mt. Hansraj Kunwar their Lordships of the Privy Council held: The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with.