- (1.) The present appeal has been filed by the unsuccessful plaintiff wherein his suit for declaration and permanent injunction has been dismissed by the Courts below and the Lower Appellate Court has in appeal directed that the appellant would be liable to be paid a sum of Rs.1,50,000/- by the Haryana Financial Corporation and she is not entitled to relief of injunction.
(2.) Brief facts of the case are that the appellant-plaintiff filed a suit alleging that land measuring 100 kanals 6 marlas situated in village Shahpur, Tehsil and District Hisar was mortgaged with possession by Mangat Ram with the plaintiff as per registered mortgage deed No.5153 dated 17.1.1995 for a sum of Rs.1,50,000/-. It was pleaded that the mutation No.1937 was also entered and sanctioned in this regard on 4.11.1996 and the plaintiff was cultivating the suit land with the help of family members. On 24.11.2006 the plaintiff came to know that Managing Director defendant No.3 had issued a recovery certificate and ordered to auction/sell a part of the suit property to recover the loan amount alleged to have been taken by Mangat Ram and accordingly, the recovery certificate and the sale order passed by the Collector were challenged being null and void as the plaintiff was in continuous possession of the suit property as mortgagee and the suit property could not be sold with her consent by another department. It was contended that the Corporation was free to recover the amount from the other property of Mangat Ram and the recovery certificate was not issued by the competent authority and the suit property was never mortgaged to the Haryana Financial Corporation. The Corporation had been requested to show the documents relating to the loan but in vain and accordingly, the prayer for declaration and injunction was sought.
(3.) The suit was contested by the State-defendants No.1 and 2 by taking preliminary objections on the ground of maintainability, cause of action and concealment of material facts and collusion and contended that mortgage deed was only for a period of ten years and that Mangat Ram owner of the suit property had obtained loan of Rs.10,34,700/- during the period from 1988 to 1992 from the defendants-Corporation, but had failed to repay the same. It was, accordingly, contended that now a sum of Rs.44,23,991/- was due and payable and the borrower was owner of the suit property and the land had been attached and fixed for auction and was sought to be defeated by the plaintiff and the aforesaid borrower. Accordingly, it was pleaded that there was no bar for the sale of the suit land. It is pertinent to mention here that initially the owner was not arrayed as defendant no.4 and when injunction was declined the appellant approached this Court by way of Civil Revision No.1694 of 2007 wherein the contention was raised that since the mortgagor has failed to redeem the mortgaged land within the stipulated time, the petitioner (plaintiff herein) had become absolute owner in possession thereof. This submission was made by the counsel and had never been pleaded in the plaint before the trial Court. This Court, thereafter, directed that the issue could only be effectively adjudicated upon if Mangat Ram was arrayed as one of the defendant and a direction was issued to implead him and thereafter decide the issue as a preliminary issue whether any right had accrued to him in favour of the petitioner in terms of the alleged mortgage deed, due to the non redemption. The relevant portion of the order is reproduced as under:- "Learned counsel for the petitioner, on the other hand, contends that since the mortgagor has failed to redeem the mortgaged land within the stipulated time, the petitioner has become an absolute owner in possession thereof . After hearing learned counsel for the parties and having regard to the rival stand taken by them, but without expressing any views on merits of their contentions, I am of the considered view that it would not be expedient or desirable to auction the subject property without first deciding the rights, if any, accrued in favour of the petitioner due to alleged nonredemption of the mortgage by Mangat Ram. However, the aforesaid issue can not be effectively adjudicated unless Mangat Ram son of Jai Chand is also arrayed as one of the defendants. Learned counsel for the petitioner undertakes to move an application under Order 1 Rule 10 CPC to implead the aforestated Mangat Ram as a party-defendant within one week. Consequently, and for the reasons afore-stated, this revision petition is disposed of with a direction that on an application moved by the petitioner to implead Mangat Ram as partydefendant, he may be impleaded as such and thereafter the issue as to what rights have accrued in favour of the petitioner in terms of the alleged mortgage deed dated 17.1.1995 and/or due to non-redemption thereof, be decided by the learned Civil Court as preliminary issues. Learned Civil Court shall make an endeavour to decide these issues as early as possible and preferably within six months. Till then, the subject property shall not be auctioned. Disposed of.";