- (1.) This civil second appeal has preferred by appellant-defendant Asgar Ali being aggrieved by the judgment and decree dated 05.07.2011 passed by learned Additional District Judge No.1, Udaipur in Civil Appeal No.17/2006, whereby the learned lower appellate court allowed the appeal filed by the respondent-plaintiff and decreed the suit in her favour.
(2.) The brief facts of the case are that the respondent plaintiff Late Smt. Nawali Bai filed a suit for discharge of mortgage against appellant-defendant Asgar Ali with the averments in the plaint that there is a house of the ownership of the plaintiff situated at Chamanpura, Hathipole, Udaipur. She mortgaged the said house with the appellant-defendant for 10 years in lieu of Rs.20,000/- in the year 1992. On expiry of the period of mortgage in the year 2002, the plaintiff asked the defendant to take the amount of loan and give possession of the mortgaged property, but he did not do so, therefore, the plaintiff served a notice on the defendant through her lawyer. In response to the said notice, the defendant gave a vague reply and refused to vacate the house. Other averments were also made in the plaint.
(3.) The appellant-defendant filed written statement and counter-claim with the averments that before expiry of the period of mortgage, the plaintiff took additional loan of Rs.17,500/- and assured that she will extend the period of mortgage by 5 years, but she did not do so. It was further averred in the counter-claim that the suit is not within limitation and proper court fee has not been paid. It is further averred that only on paying the total amount of Rs.37,500/- the plaintiff can get any relief or decree. Further the appellant-defendant claimed the cost of Rs.5,000/-. The respondent-plaintiff filed rejoinder and denied receiving additional loan of Rs.17,500/- and extending the period of mortgage.;