MAHMADALLI KAMRUDDIN Vs. ABDULALI KARIMBHAI

JUDGEMENT

(1.) IN this case the property of a mortgagor was mortgaged to the plaintiff. It consisted of a house-site and a field. Subsequently the house, subject to the mortgage, was sold to defendants Nos. 1-26. The defendants then had a right to redeem the whole property. After this purchase the plaintiff by arrangement with the mortgagor purported to acquire the field for Rs. 1,200 and set off the price pro tanto against the mortgage-debt. He now sues the purchasers of the house to enforce the balance of the mortgage debt by sale of the house. The defendants as such purchasers claim to be entitled to redeem the original mortgage, and to take over the field upon such redemption. It is clear that they would be entitled to do so if the field had not been sold out and out to the plaintiff. But that sale was subsequent to the acquisition of the house-site by the defendants, and it was without their privity or consent. We, therefore, think that they have not been daprived of their right of redemption which was in existence since they purchased the house-site, and their offer to pay to the plaintiff, the amount of Rs. 1,200, which had been set off against the mortgage-debt at the time of the alleged transfer of the equity of redemption of the field, should have been allowed. We, therefore, set aside the decree of the lower appellale Court and decree that the defendants be at liberty to redeem the mortgage by payment of Rs. 1628-12-0 (British) together with interest at 4 per cent, upon Rs. 428 part /thereof from the date of suit until redemption, within six months, and upon redemption we decree that the plaintiff do transfer the field to them free from incumbrancas, but that if the mortgage-debt be not paid within six months, the field be taken as representing Rs. 1,200, and that the house-site be sold, and the proceeds applied to satisfy the balance of the mortgage-debt. If the property is redeemed, the mortgagee will be entitled to the costs of the institution of this suit to be added to the mortgage-debt. But he must pay to the defendants the costs of the hearing in the first Court and the costs of the two appeals. If the defendants do not redeem within six months they must pay all the costs of the plaintiff.