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TMI Blog2005 (2) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... rited by Smt. Sukh Dei, who on 1st April 1950 executed a sale deed selling her right of redemption in favour of Narvedshwar Mishra (original plaintiff and respondent herein). Sukh Dei had only a limited interest being a Hindu widow not in possession of the property. The plaintiff contended in the suit that the period of 60 years was fixed as the period of mortgage amounted to a clog on the equity of redemption and hence, null and void, and therefore, the plaintiff was entitled to redeem the mortgaged property without waiting for expiry of the mortgage period. Mst.Toranto died leaving her son Harbans Kalwar and daughter Harkali. Harbans Kalwar also died leaving behind his widow Sukh Dei the only heir. Mst. Dhanpati filed a suit No.904 of 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Plaintiff had no right to redeem the property; held that Harbans Kalwas son of Toranto died after Smt. Toranto and Sukh Dei was the wife of Harbans Kalwar who claimed the property of Smt. Toranto after the death of Harbans Kalwar; the conditions of mortgage did not amount to clog on redemption and the suit was premature. Narvadeshwar Mishra heir of the original plaintiff filed Civil Appeal No. 44 of 1956 arising out of suit No. 1070 of 1950. Smt. Dhanpati and Sukhi Lal did not file any appeal against the dismissal of their Suit No. 904 of 1951 and 1486 of 1953, in view of the finding of trial court that suit was premature. On 23.4.1958 the Additional Civil Judge, Gorakhpur dismissed the appeal on the sole ground that the suit was prematu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the suit abated. An appeal carried by the plaintiff against the abatement order was also dismissed by the District Judge for default. An application for restoration was filed in the appeal. An attempt to serve notice issued for restoration of the appeal elicited the report that three of the respondents had died in 1965-66. The Additional Civil Judge, Gorakhpur held that the appeal stood abated against respondents 4 and 6 in the appeal. In appeal the First Additional District Judge took the view that though one of the appellants Smt. Godawari (one of the heirs of the original plaintiff) had died, and her heirs were not brought on record, the appeal did not abate. An application for amendment moved on behalf of the defendants to amend the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the said order was not challenged in the year 1966, the appellants were entitled to canvas the correctness of the said order in the present appeal. We shall presently examine these contentions. In Seth Ganga Dhar v. Shankar Lal & Ors. (at p.512), following the view taken by the Privy Council in Bakhtawar Begum v. Husaini Khanam , it was held that "Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only arise on the expiration of the specified period." In Gangadhar (supra) the term of the mortgage was 85 years and there was no stipulation in the deed which entitled the mortgagor to redeem during the said term. The suit h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final order. This view was again reiterated in KC Bose (supra) wherein it is observed (p. 767) "Mr. Sinha appearing for the respondent was unable to cite any authority of this Court taking a contrary view or overriding the decisions referred to above. In this view of the matter we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then all the subsequent proceedings, namely, the order of remand, the order passed after remand, the appeal and the second judgment given by the High Court in appeal against the order of remand would become non-est." Having considered the questions urged by the learned counsel, which appear to be backed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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