B SHAMA RAO Vs. B S PANDURANGA RAO

JUDGEMENT

(1.) THE plaintiff is the appellants who is aggrieved by the dismissal of the suit for redemption by the Trial Court.

(2.) THE geneological tree of plaintiffs family is given as follows: B. Shama Rao (Brothers)<IMG>pra_1.jpg</IMG> On 19. 2. 1948 possessory mortgage was created by the aforesaid three plaintiffs in favour of the second defendant for Rs. 10,000/- for five years. The mortgagor continued in possession of the mortgage property as a tenant on monthly rent of Rs. 97. 50 ps. There was a second mortgage, deed claimed by the second defendant for Rs. 3000/- representing the arrears of rent and executed on 12. 12. 1948. The second defendant had filed therefore O. S. 120/51-52 on the file of the 1 Munsiff, Bangalore, for recovery of Rs. 1225/ -. The suit was decreed in Ex. No. 1002/51-52. The schedule property was auctioned and the second defendant purchased the property on 11. 9. 1952. On 18. 2. 83 the present suit is filed seeking the relief of redemption of the schedule property.

(3.) IT is contended that the suit is in contravention of Order 34 Rule 14 CPC. The second defendant has gained an advantage against the mortgagors in respect of the suit schedule property. He holds the property for the benefit of the mortgagors subject to repayment of the mortgage money with the expenses properly incurred by the mortgagee, and to indemnify against the liabilities properly contracted in gaining such an advantage as per Section 90 of the Indian Trust Act. The property is situated opposite to Kino talkies, Seshadripuram and it was worth more than Rs. 50,000/- at that time and now it is worth more than Rs. 10,00,000/ -. It is thus seen that the mortgagee has gained considerable advantage by acquiring the suit schedule property in the sale held in pursuance of the decree obtained by him. So the second defendant is under an obligation to allow the plaintiffs to redeem the property. Thus, the suit was filed.