MAHMUD HASAN Vs. LAUTI RAM

JUDGEMENT

(1.) On the 28 of May 1897, five properties were usufructuarily mortgaged in favour of two ladies, Aminat-un-nissa and Ghafur-un-nissa. The money agreed to be advanced by the first-named lady was Rs. 27,500, and by the second Rs. 1,500. The way in which the detail of the consideration money was made up was that one sum of Rs. 13,000 was left for payment in respect of two mortgages dated the 21 July 1893, a sum of Rs. 4,200 under a mortgage of the 19th September, 1892; another sum of Rs. 4,000 under a subsequent mortgage, and a, final payment of Rs. 6,300 by the promissory-note of the mortgagees. In fact none of the three first named sums of Rs. 13,000, Rs. 4,200 and Rs. 4,000 were ever paid by the mortgagees, but there is a definite finding that Rs. 6,800 were paid to the mortgagors by the mortgagees in May 1897. The plaintiff asked for a declaration that the property Ibrahimpur was not subject to any charge created under the mortgage-deeds and there was an alternative prayer that if there was any charge it was limited to Rs. 987-1-9 and there was a prayer, in its nature formal, that any other relief which can be granted to the plaintiff may also be granted to him.

(2.) The matter was tried in the Court of the Subordinate Judge of Saharanpur and he came to the conclusion that no redemption decree could be granted, but he found in favour of the plaintiff that the particular property had been freed from any charge upon it. The plaintiff did not appeal, and when the matter came before the District Judge of Saharanpur he disagreed with the lower Court that the sum of Rs. 6,800 had never been paid by the mortgagees and that finding of fact is not, of course, appealable to this Court nor has, quite properly, any argument been put forward to show that finding of fact was wrong. He went on to consider whether the mortgage as regards this particular property had been redeemed and he came to the conclusion that the mortgagees had been paid back the loan of Rs. 6,800 and, having gone into details in respect of that, was satisfied that nothing was due to the mortgagees. Having reached that point he had to consider what should be done and he decided that the suit for declaration was barred by limitation. The case, therefore, was in this position that the plaintiff, having asked for a declaration which the lower appellate Court found was barred by limitation, and it having been found in his favour that there was no encumbrances on the property, the question arose as to what in the circumstances was the proper thing to do.

(3.) Before the District Judge gave any decision the case stood in this way that the plaintiff had succeeded partially in the lower Court; he had not raised any cross- objection nor had he appealed independently on the matter decided adversely to him, namely, redemption. The learned. District Judge was of opinion that he could proceed under Order 34, Rule 9 and that he could direct the defendants to re- transfer to the plaintiff that part of the mortgaged property which was the subject of the action.