9911796707
TMI Blog1968 (2) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiffs and defendants 1 to 4 were the co-sharers in properties, including the suit property, for facility of reference, hereinafter mentioned as Unit No. I and Unit No. II. In Unit No. I, the plaintiffs and defendants had equal share and in Unit No. II, the plaintiffs had one-third share and the defendants two-thirds share. The plaintiffs effected two mortgages in 1943 in September and December in favour of Mst. Sunhari Devi, who is the predecessor-in-interest of defendants 1 to 4. In September, 1948, a third mortgage was executed whereby the first two mortgages were discharged. However, the terms of all the three mortgages are similar. The rent of the properties mortgaged was to counter-balance the interest. The defendant-mortgagees, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present form. This issue was decided by both the Courts below against the defendants. Before the trial Court, the objection precisely was that the mortgage debt had been paid in full and that the plaintiffs, therefore, could not bring a suit for redemption; but could only bring a suit for recovery of possession. It appears that this matter was not agitated in the lower appellate Court. The defendants 5 to 20, who are dissatisfied with the decision of the Courts below, have come up in second appeal. 4. Mr. D. N. Aggarwal, learned counsel for the appellants, has raised the contention that no suit for redemption is competent. This contention is met by the learned counsel for the respondents on the ground that this matter was not agit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C., until confirmation of the sale made under a final decree for sale or whether the final decree for sale operates to extinguish the right of partial redemption. The mortgagor's right of redemption is a statutory right governed by Section 60, Transfer of Property Act, 1882. The wording of the final paragraph of that section shows clearly that the right of partial redemption thereby recognized is a right corresponding in all essential respects to the right to redeem conferred upon the mortgagor by para 1 thereof. But this right is expressly stated as a right to redeem the mortgage money and the mortgage money is referred to in Section 58(a) of the Act as the principal money and interest of which payment is secured for the time being. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Civil Procedure Code itself, will prevail. Not only can these two provisions be read together, but when Section 60, Transfer of Property Act, 1882, is given what I understand as above-mentioned to be its ordinary meaning, it in no way conflicts with the provisions of Order 34, Rule 5. It follows from these considerations that not only is the mortgage debt merged in the decretal debt, but also firstly, that as between the mortgagee and the mortgagors parties to the suit for sale, the mortgage security merges in the decree and is replaced by the security of the order for sale which merger is also in accordance with the ordinary principles of res judicata, the lower mortgage security which the mortgagee necessarily relies upon in his suit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that decree and have to be redressed in the manner provided in Order 34. 5. Mr. Mittal's next contention is that we should treat the suit for redemption as a suit simpliciter for possession. We are unable to do so. The very basis of the suit was that there was a mortgage, which had been paid off: and as the possession had not been delivered to the plaintiffs, their right of redemption still subsisted. As already held, there being no right of redemption subsisting in view of the fatal decree for sale in the mortgage suit, we cannot treat the redemption suit as a suit for possession. As a matter of fact, the question may still arise whether in view of the final decree, a separate suit for possession would lie. But, as at present ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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