Decided on April 16,1973

Lingaraju Maharana And Anr. Appellant
Motilal Brothra Respondents


S.K.Ray, J. - (1.) THIS petition by Defendants 1 and 2 is directed against the order dated 15 -4 -1971 passed by the Munsif, Berhampur in T.S. No. 140/67 dismissing their counter claim.
(2.) THE opposite party had taken a mortgage of the suit house from the Petitioners. It was a mortgage by conditional sale. The mortgage document was executed on 30 -31962 and the time stipulated for repayment of the loan was 5 years i.e. the time of repayment of loan was 30 -3 -1967, and thereafter, in default of payment of mortgage loan, the sale would become absolute. The mortgagee, opposite party filed T.S. No. 140/67 against the Defendants -Petitioners for a decree for making the sale of the suit house absolute in his favour. The Petitioners filed their written statement disputing the Plaintiff 's claim. They made a cross claim for a decree declaring that the mortgage stood redeemed and directing the Plaintiff -mortgagee to deliver possession of the suit house to them together with all the documents relating to the mortgaged property and for future mesne profits till delivery of possession and for costs. They also paid necessary Court fees for the said reliefs.
(3.) T .S. No. 140/67 was dismissed for default and the petition for restoration also was dismissed. On 17 -4 -1970, the munsif, while dismissing the petition for restoration of the suit, ordered further that - So far as the counter claim is concerned, the case will proceed and Plaintiff in the original suit who is contesting the counter claim is set ex parte and the case is posted for hearing on the counter claim to 11 -5 -1970.;

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