BANS BAHADUR RAI Vs. CHAITRA KUT RAI

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption of a mortgage by conditional sale executed on the 15 of April 1866. The plaintiffs and certain pro forma defendants are the heirs of the mortgagors, and the contesting Defendants Nos. 1-13, who are the appellants in this Court, are the heirs of the mortgagee. The defendants contended that the mortgage was foreclosed under Regulation XVII of 1806, and that the right of redemption was absolutely extinguished by a decree of the Munsif's Court, dated the 19 of February 1876. Adverse possession for more than 12 years was also pleaded as a defence. We are not concerned with the other pleas raised by the defendants. The trial Court found that the right of redemption had been extinguished and dismissed the suit.

(2.) The lower appellate Court held that it was necessary for the defendants to prove that the foreclosure procedure laid down in Regulation XVII of 1806 had been strictly followed, and that the right of redemption survived failing proof that all the formalities prescribed by the Regulation had been observed. Finding that the notice issued in the foreclosure proceedings was defective, and that there was no proof of a prior demand for payment, the lower appellate Court held that the right of redemption was not extinguished, and decreed the plaintiff's claim for redemption.

(3.) In our opinion, the learned District Judge was wrong in thinking that, in the present case, it was necessary for the defendants to prove that every step in the procedure prescribed by Regulation XVII of 1806 had been followed. He relies upon the rulings in Badal Ram V/s. Taj Ali (1907) 4 ALJ 717 and Ram Baran Rai v. Har Sewak Dube AIR 1918 All 246. In these rulings it was held that in a case of a mortgage to which Regulation XVII of 1806 applies, before it can be held that the right of redemption is barred, it must be proved that the requirements of the regulation have been strictly complied with. For instance, it must be proved that there was a previous demand by the mortgagee from the mortgagor of payment of the mortgage-debt. These rulings, however, do not apply to the present case. In the present case the mortgagee did not only adopt the foreclosure procedure prescribed by Regulation XVII of 1806, but after he had obtained a rubkar, dated 15 July 1875, ordering foreclosure, he then proceeded to institute a suit for proprietary possession of the mortgaged property. The suit was instituted in the Munsif's Court on a valuation of Rs. 601, which was the consideration mentioned in the mortgage-deed. The mortgagors put in a written statement admitting the claim. They stated that as a matter of fact the claim is proper and the document in favour of the plaintiffs is genuine and payable. The amount was borrowed and the mortgage-deed by conditional sale was executed by these defendants. The foreclosure proceedings were taken within the knowledge of these defendants. The plaintiff should be awarded possession as prayed for in the plaint; these defendants and their heirs shall have no objection to it.