GHANASHYAM RATH Vs. UDAYANATH NAIK

JUDGEMENT

(1.) This appeal is directed against a decision of the Subordinate Judge of Cuttack, dated 26 July 1944, reversing a decision of the Munsif of Kendrapara, dated 13 July 1943. It raises a question which has friend the subject of several decisions of this Court in its Cuttack Circuit: vide Rasihananda Mallik V/s. Gangadhar Panaa 1 cut. L.T. 19 and Maheswar Mahanty V/s. Dayanidhi Mahanty 1 cut L.T 12. Narayan Sahu 1 Cut. L.T. 19 and Badhamohan Thakur V/s. Bipin Behari A.I.R 1938 Pat 505.

(2.) The appellant is the plaintiff. The suit was filed as a suit for the declaration of his title to and for the recovery of possession of the property in suit, but it is really an action for the redemption of a mortgage affecting that property. The property in suit belonged to one Bhagwan Patra, who, on 9 July 1941, executed a sale deed (EX. A) for RS. 630 purporting to transfer it to Udayanath Naik (defendant). The consideration was made up as follows The previous transactions between the parties included a usufructuary mortgage affecting the suit property executed on 7 December 1935 and a loan of RS. 49 taken by Bhagwan Pawa on 25 November 1936. The mortgage is the transaction sought to be redeemed in the present suit. In respect of the loan of Rs. 49 a suit filed by Udayanath Naik on 3 July 1941 was pending when the sale-deed (EX. A) was executed. In accordance with the sale-deed, the dues claimed in this suit should have been treated as satisfied but, for some reason, the suit went on, being finally dismissed on 23 April 1942.

(3.) The case of the plaintiff is that Udayanath Naik took no steps to pay the dues of the landlords and of the plaintiff under his mortgage, and did not even pay the amount of Rs. 67 to Bhagawan Patra and, therefore, on 15 October 1941, the latter sent him a notice intimating that, if he did not act in accordance with the contract, the sale-deed would be cancelled. In spite of the receipt of the notice, Udayanath Naik took no steps and, therefore, on 11 November 1941, Bhagawan Fatra executed a second sale-deed by which he purported to transfer the same property to the present plaintiff. On these allegations, the plaintiff sought to redeem the usufructuary mortgage of 7 December 1985.