SANT RAM Vs. ATMA SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit for redemption based on a mortgage of 21-2-1936 made by Sant Ram son of Rala in favour of Atma Singh. Sant Ram, who was the plaintiff in the case, contended that though the mortgage was for Rs. 90 he was entitled to redeem the house on payment of Rs. 10 only, because the defendant had removed the malba of the house which was worth Rs. 8o. Atma Singh defendant admitted the factum of the mortgage but denied the plaintiff's right to redeem. The position taken up by him was that the house had been sold at a court-auction in execution of & money decree against Rala, to whom it originally belonged and since the sale had been knocked down in his (Atma Singh s) favour the equity of. redemption no longer remained vested in. Bant-Ram. He also raised a technical objection that. Sant Ram being a party to the suit in which the decree in question was passed his proper remedy was to object under Section 47, Civil P.C., and that the suit for redemption was barred. The facts relating to the decree, in execution of which the house was attached and sold are not denied and they are as follows:

(2.) One Dharma sued Bala father of Sant. Ram for a specific sum of money. Rala died during the pendency Of the suit on which Sant Ram was brought on the record as his legal re presentative. A decree was passed in Dharma s-favour against Sant Ram but recoverable out of Rala's estate on 27-1 1988. Later on, Dharma assigned the decree in favour of Atma Singh who sued out execution and attached the house, which is the subject-matter of the dispute in the present case, as Rala's property. In the auction sale that ensued Atma Singh himself bought the house on 7-7-1941.

(3.) The trial Sub-Judge overruled the technical objection raised by Atma Singh defendant and granted Sant Ram a decree for redemption of the house on payment of Rs. 90. The Senior Subordinate Judge on appeal affirmed the finding of the lower Court that the charge on the mortgaged property amounted to Rs. 90, but he dismissed the suit holding that it was barred by virtue of Section 47, Civil P.C.