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1949 (5) TMI 18

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..... 51.20 acres of inam lands along with other lands (which need not be hereafter referred to as they were later on disposed of by consent of parties) to secure a sum of ₹ 30,000 lent by the mortgagees. In respect of the suit lands it was a non-possessory mortgage. On the 27th November, 1915, he executed another mortgage with possession of the suit, lands for ₹ 4,000, but as the lands were in the occupation of the lessees under a lease for 15 years from F. 1320 to 1334 (1910-11 to 1924-25) at an annual rent of ₹ 1,000 it was stipulated that the mortgagees were to receive the rent from the lessees and to take possession of the lands on the expiry of the lease. On the 31st July, 1916, there was a further mortgage of the suit lands along with two other properties to the mortgagees for ₹ 4,000. In that deed it was provided, inter alia, that on the expiry of the lease at the end of F. 1334 (30th June, 1925) the mortgagees should take possession of the suit lands and pay a rent of ₹ 4,000 per annum from F. 1335. It was further provided that, after payment of the revenue and taxes payable in respect of the lands, the balance should be applied first in, reduction .....

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..... stration of the sale deed, the mortgagor had agreed to execute (sic) give to the mortgagees at their cost a proper sale deed in respect of the said properties within three months from that date, so that it may not be necessary for the mortgagees to realise the amounts of their mortgage claims by instituting a suit to enforce the same. The second document, which is passed in favour of the wife of the mortgagor and is signed by the mortgagee, recites that all properties of the mortgagor had been mortgaged to the mortgagees with or without possession and the debts due to the mortgagees had remained unpaid. They were requesting the mortgagor to sell the properties to them as the value of the properties was not sufficient even to satisfy the mortgage debts. The wife of the mortgagor pleaded that having regard to the large amounts paid towards the mortgage debts, if the properties were sold to others, some amount would remain in the hands of the mortgagor. Since however she had caused an agreement to be executed by her husband to sell the properties to the mortgagees, the mortgagees agreed to execute in her favour for her maintenance and residence, immediately upon the mortgagor executin .....

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..... . In the alternative, it was contended that the mortgagor having agreed under the document of 7th November, 1932, to sell to the mortgagees the mortgaged properties (including the suit lands) in satisfaction of the mortgagor's liabilities under the different mortgages and for an additional sum of ₹ 100, the equity of redemption was extinguished by the act of parties and it was immaterial if the parties had carried out or not the terms of the compromise. In the further alternative it was contended that the compromise having been partly performed the same should be enforced under s. 53A of the Transfer of Property Act and therefore the mortgagor was not entitled to claim redemption, although no sale deed in fact had been executed in favour of the mortgagees. The High Court accepted the first contention and allowed the appeals of the mortgagees. It did not consider it necessary to deal with the other two alternative contentions. 6. The relevant portion of O. XXIII, r. 1, of the Code of Civil Procedure on which the mortgagees relied, runs as follows: O. XXIII 1. (1) At any time after the institution of a suit the plaintiff, may...withdraw his suit or abandon part of hi .....

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..... ed on behalf of the mortgagee that as the mortgagor, after his suit was dismissed, had taken steps for the re-hearing of the suit and failed in his attempts, no second suit for redemption lay. On behalf of the mortgagor it was argued that as the second suit was for the redemption of the superior proprietary rights the cause of action was different and the suit was not barred. The Privy Council rejected this contention. That decision is not applicable to the facts here. The mortgage was in 1853 and the first suit was filed in 1864. At that time the Transfer of Property Act was not even enacted and there were no provisions like s. 60 of the. Transfer of Property Act applicable to Oudh, where the litigation started and the lands were situated. It was contended on behalf of the mortgagee that as the mortgagor had failed to carry Sat his covenant to pay according to the mortgage bond, his right to redeem had gone. Some reliance was put on, s. 6 of Act I of 1869. It was pointed out that the section could not be considered so as to affect retrospectively a decree between the parties existing at the time of the enactment and re-establish relations which by the decree (dismissal of the suit .....

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..... d this contention and observed that if a second suit for redemption was maintainable the answer to the contention was that the second suit was a redemption suit and not an application to enforce the old decree. Section 47 of the Code of Civil Procedure cannot, therefore defeat the claim to redeem. The second contention was that the decision in the former suit operated as res judicata and s. 11 of the Code of Civil Procedure prohibited the courts from trying the second suit. Their Lordships rejected this contention also. They pointed out that the issues decided in the former suit were (i) whether the mortgagors were then entitled to redeem; (ii) and the amount then to be paid if redemption then took place. The issues in the second suit were (i) whether the right, to redeem now existed; and (ii) the amount now to be paid if redemption now took place. They observed that if the mortgagor's right to redeem was extinguished that was a separate question which may overlap the Question of res judicata, but if it was held that the right to redeem was not extinguished there was no ground for saying that the old decree operated as res judicata under s. 11 of the Code. The structure of the, .....

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..... d not been extinguished. The decision in Thakur Shankar Baksh's case (1888) 15 I.A. 66 was not even cited as relevant to the decision of the case. 10. By an amendment of the Transfer of Property Act made by Act XX of 1929, the word order has since been substituted by the word decree . 11. In Bombay, in Ramachandra Kolaji Patil v. Hanmanta and Another I.L.R. (1920) Bom. 939 a suit for redemption was brought but permission was granted to withdraw the same on condition that a fresh suit be brought within two years and on the further condition that the defendant's costs were paid. A second suit was brought by the mortgagor to redeem but eight years after the order of withdrawal was made. It was argued that the suit was time barred and as the condition was not fulfilled no second suit for redemption could be permitted. Macleod C.J. held that the law allowed a particular period to the mortgagor within which he can redeem the mortgage. He observed : The mere fact that he files a suit to redeem and then either abandons or withdraws it will not deprive him of his right to redeem . Heaton J. did not go to that length but held that the period of limitation for redemption can .....

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..... uished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. The Board expressly held that if the appellants failed to establish that the old decree extinguished the right to redeem, there was no ground for saying that the old decree operated as res judicata and the courts were prevented from trying the second suit under s. 11 of the Code of Civil Procedure. They therefore held that the right to redeem was not extinguished by the procedural provisions contained in the Civil Procedure Code. 13. It was next argued on behalf of the respondents that although the right to redeem may not be extinguished the remedy was barred. In support of that contention, the learned counsel relied on the words of O. XXIII, r. 1, of the Civil Procedure Code. In our opinion, the High Court did not properly appreciate the effect of the termination of the former suit of 1929. When that sail reached hearing on the 9th November, 1932, the Subordinate Judge wrote a judgment in which, after reciting that the suit in forma pauperis to redeem the three mortgages was riled and four issues were raised, he stated as follows : The plaintiff has been ex .....

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..... s it suited them for the moment. The trial judge has held that the two documents were executed but there was no bona fide compromise at all. In the absence of proper evidence we are unable to hold that there was an enforceable compromise, much less a compromise under which the right of redemption of the mortgagor was extinguished. 15. The second argument advanced on behalf of the respondents in this connection was that although there was no sale deed by the mortgagor as provided under his writing of 7th November, the court should specifically enforce it under s. 53-A of the Transfer of Property Act. The words of s. 53-A negative this contention completely. The relevant portion of the section is as follows: Section 53-A Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract.... and the .....

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