RAGHUNATH SINGH Vs. MT HANSRAJ KUNWAR

JUDGEMENT

(1.) This appeal from the High Court at Allahabad arises in a suit for redemption of a mortgage and further charge, the appellants being the hairs of some of the original mortgagees. The relevant facts leading up to the present litigation must first be stated. The mortgage and further charge are both dated 22 June, 1864. By the mortgage certain shares in 5 villages were mortgaged by way of conditional sale, the mortgagees being placed in possession, with no liability to account for mesne profits. The principal money was repayable at the end of three years. A further principal sum was secured by the further charge. In the year 1892 the mortgagor instituted a redemption suit alleging- that nothing was due under the securities, and claiming to be put into possession of the shares in the 5 villages, or, if the Court should find that any sum was due, that it might order redemption subject to the payment of such sum. The result of that suit was that as to the shares in 2 of the villages it was decided that (for reasons which need not here be stated) there was no right of redemption any longer existing, and that as to the shares in the other 3 villages the plaintiff could redeem them on payment of the proper proportion of the mortgage money, viz., Rs. 4,208-6-0. A decree dated 25th September 1896 was accordingly made in the following terms : "It is ordered and decreed that the plaintiff is entitled to a decree for possession by redemption of mortgage in the following terms, viz., that he should pay Rs. 4,209-6-0 by 15 November 1896, that if he will pay the said sum he will get all the costs, except the pleader's fee incurred by him in this Court, and that in case of default his case will stand dismissed and the costs incurred by the defendants will be charged against him."

(2.) An appeal therefrom was dismissed with costs. No payment of the mortgage money was ever made and the mortgagees remained in possession. The suit in which the present appeal arises was commenced on 5th March 1924. The plaintiff is the representative and heir of the original mortgagor, the defendants being persons claiming through or under the original mortgagees and being in possession of the shares in the said 3 villages. By his plaint the plaintiff alleged that the whole of the Rupees 4,208-6-0 had been satisfied out of the increased profits of the mortgaged properties, and he claimed (a) possession of the shares of the 3 villages by redemption on the footing that the mortgage money had been satisfied, or (b) if any amount of the mortgage money be proved due, a decree for redemption on condition of payment of that amount. The two principal points for decision were (1) whether any and what amount of mortgage money was then due, and (2) whether this (the second) redemption suit was maintainable.

(3.) At the trial the Subordinate Judge decided (1) that the amount of mortgage money then due was Rs. 5,243-13-0, and (2) that notwithstanding the dismissal of the previous suit the present redemption suit was maintainable, and he made a decree (dated 14 November 1921) for redemption on payment into Court of the amount declared due on or before 25 April 1925. The Subordinate Judge considered that on the second point the case was covered by the decision in Hari Ram V/s. Indraj 1922 All 377. An appeal to the District Judge by the present; appellants was dismissed by him. He also considered that the case was covered by the above- mentioned decision. A second appeal to the High Court at Allahabad by the present appellants was equally unsuccessful, the Court holding that upon authority "one cannot question the right of the plaintiffs to sue for redemption notwithstanding their failure to redeem under the decree of the previous suit."