THAKUR RUDRAPAL SINGH Vs. MATABADAL SINGH

JUDGEMENT

(1.) This appeal presents only a question of Jaw for determination, the facts being all admitted.

(2.) The history of the ease is briefly this. There was a mortgage by father and son Earn Saran Singh and Mahadeo in favour of the predecessor-in-title of the defendants. Mahadeo brought a suit for redemption after having deposited in Court the full amount of the mortgage money, viz., a sum of Rs. 100, under Section 83 of the Transfer of Property Act. Evidently because the mortgagees did not withdraw the money from Court, Mahadeo brought a suit for redemption and a decree was spassed in his favour on the 26 of June, 1918. The language of the decree is important and is as follows: That the suit for possession by redemption of the mortgage get up by the plaintiff be decreed and the claim for mesne profits up to the date of the suit be dismissed. The plaintiff will get pendente lite and future mesne profits, the amount of which will be determined in the execution department, If the amount of the mortgage money Rs. 100, deposited by the plaintiff under Section 83 of the Transfer of Property Act has been withdrawn, he is given six months time from to-day to pay into Court the said sum, failing which the mortgaged property will be sold. If the deposit under 8. 83 of the Transfer of Property Act has not been withdrawn defendants will be entitled to withdraw it.

(3.) As happened to be the ease, the money deposited under Section 83 of the Transfer of Property Act was still in Court and was actually withdrawn by the mortgagees on the 6 February, 1919. Mahadeo knew that the mortgage money was already in Court and he accordingly applied at once for delivery of possession. This application was made on the 25 of July, 1918. Unfortunately, however, this application was dismissed for default on the 13 of November, 1918. After having presented the application for delivery of possession Mahadeo gifted away the plaint property to one of his sister's sons Ram Jagat. Ram Jagat died and his four brothers the plaintiffs Nos. 2 to 5 inherited his property. They and the plaintiff No. 1 who obtained a portion of the property from the other plaintiffs by a deed of exchange have launched a fresh suit to redeem the property which is still in the possession of the defendants the representatives of the original mortgagees.