GULAB SINGH Vs. RISAL SINGH

JUDGEMENT

(1.) This is a decree-holder's appeal. There was a mortgage dated 14th March 1925, in favour of Thakur Gulab Singh, the appellant. The mortgagee brought a Suit No. 622 of 1929 on the basis of his mortgage which was decreed on 31st March 1930. He executed his decree and sold the mortgaged property, but the decree not being satisfied a decree under Order 34, Rule 6, Civil P. C. was passed on 12th August 1932. The decree was executed more than once after 1932 but the present application for execution was filed on 6th March 1943. An objection was taken on behalf of the judgment-debtor that the decree under Order 34, Rule 6, Civil P. C. must be deemed to have been satisfied under Section 21, U. P. Debt Redemption Act (XIII [13] of 1940) and the decree was, therefore, not executable. The case of the decree-holder, however, was that the mortgage in his favour not being a first mortgage Section 21, Debt Redemption Act was not applicable. The decree-holder relied on the fact that there was a prior mortgage dated 16th June 1920, registered on 17th June 1920, in favour of one Jhamman Lal for Rs. 600, and the property included in that mortgage was one of the three items included in the mortgage dated 14th March 1925. On behalf of the judgment-debtors it was pleaded that the first mortgage dated 16th June 1920 was satisfied and was not in existence on 14th March 1925. A lease had been executed on 16th June 1925 by the mortgagors in favour of Tori Ram, nephew of Jhamman Lal, for a period of five years and it was provided in this lease that the lessee would pay Rs. 214 each year to the mortgagee towards his mortgage. The contention of the judgment-debtor was that these sums were regularly paid and the mortgage was satisfied.

(2.) The trial Court decided in favour of the judgment-debtors. The lower appellate Court, however, held that, though the first mortgage dated 16th June 1920, had been satisfied by reason of payments made by the lessee, it was not proved by the witnesses produced on behalf of the judgment-debtors that the last instalment of Rs. 214 was paid prior to 14th March 1925, the date on which the mortgage in favour of the appellant was executed. It was, therefore, of the opinion that the mortgage in favour of the appellant being a second mortgage as regards one item of property it was not a first mortgage-within the meaning of that term in Section 21, Debt Redemption Act, and the decree-holder was entitled to execute the decree passed in his favour under Order 34, Rule 6, Civil P. C.

(3.) In second appeal a learned single Judge of this Court came to the conclusion that two items of properties having been mortgaged for the first time to Gulab Singh the fact that the third item had been previously mortgaged did not matter as there was no evidence to show the respective values of the three items and full benefit of the section should, therefore, be given to the agriculturists debtors. The learned Judge, set aside the order passed by the lower appellate Court and restored that of the learned Munsif. The learned Judge, however, gave leave to file an appeal and this Letters Patent appeal has been filed on behalf of the decree-holder,