GULAM ABBAS Vs. TIYABALI BHAI

JUDGEMENT

(1.) THIS is a petition under Article 133 (1) (b) of the Constitution.

(2.) MATERIAL facts are that on 29-12-1899 three brothers Yusufali, Mohammadali and Alibhai jointly mortgaged two shops situated at Jaora with Khan Bahadur yarmohammad Khan. The mortgage was usufructury and possession was delivered on the same day. In 1909 Khan Bahadur Yarmohammad died. His daughter iftikhar Zamani Begum married Nawab Iftikharali of Jaora. She died in the year 1918 leaving her husband as the sole heir. The Nawab continued in possession till december 1945 when he sold his interest in the property to the defendants. The legal representatives of the mortgagors filed the present suit for redemption of the mortgage which was resisted by the purchasers from the Nawab. The suit was initially dismissed on the ground of limitation. However it was ultimately held by this Court that the claim for redemption was not barred by limitation and a decree for redemption was passed. The defendants now seek certificate against the aforesaid decree for redemption of the mortgage.

(3.) IT is contended on behalf of the defendants that the effect of the decree for redemption granted against them is that they would be deprived of the property which they had purchased for a consideration of Rs. 25,500. After its purchase by the petitioners they had spent about Rs. 34,500 in its reconstruction and remodelling. Thus they have spent in all Rs. 60,000 for repairing the same. The present market-value of the property was also stated to be Rs: 70,000. An affidavit asserting these facts has been filed by one Mohammad Shafique who claims to have personal knowledge of all these facts stated above. There is no counter affidavit.