- (1.) The defendants, Jabber Lal S/o Ramchandra Sunar, Smt. Mumi @ Magi W/o late Sh. Umraochand Sonar, Huchi @ Laxmi W/o late Sh. Nemichand Sonar and Kamla W/o Sh. Shenaram have preferred this second appeal against the plaintiffs-respondents Balu Ram S/o Ram Narayan (not Ramchandra s/O Gokul Das, who is defendant) and legal heirs of Smt. Rupi Bai W/o late Sh. Ram Jeevan and others being aggrieved by the judgment and decree passed by lower appellate court dated 29.09.2006 allowing plaintiffs' appeal No. 96/1993-LR's of Ramnarayan Vs. Jabberlal & Ors. , against the judgment and decree dated 18.05.1989 of learned trial court in Civil Suit No. 318/1968-Ramnarayan Vs. Amarchand & Ors. , by which the learned trial court dismissed the suit for redemption of mortgage as barred by limitation.
(2.) Learned counsel for the appellants-defendants, Mr. R. K. Thanvi, Sr. Advocate urged that the suit was rightly dismissed by the learned trial court on 18.05.1989 and the appellate court has erred in allowing plaintiffs' first appeal by the impugned judgment and decree dated 29.06.2006 and decreeing the suit for redemption of mortgage. His contentions, as summarized are: (I) That the limitation did not get extend for filing the suit for redemption, as there was no acknowledgment in writing by the defendants of any mortgage in favour of plaintiff (Mortgagor) and, therefore, the learned trial court rightly rejected the suit as barred by limitation. (II) That the plaintiffs failed to prove the certified copy of the mortgage-deed produced before the learned trial court as a secondary evidence under Section 65 of the Act under order of trial court dated 28.11.1983 and no presumption of its correctness could be drawn by the learned appellate court under Section 90 of the Evidence Act, since the certified copy of the mortgage-deed was produced as secondary evidence under the orders of the learned trial court under Section 65 of the Act; and in absence of the original mortgage-deed, no presumption of its correctness or its execution could be drawn by the learned appellate court. (III) That in view of the necessary parties viz. Legal representatives of Ramchandra, Smt. Kamla, Laxmi and Munnalal, husband of Suraj D/o Ram Chandra, having not been impleaded in the suit at the time of filing of the suit on 01.07.1968, the later impleadment of all the necessary and proper parties in the suit on 24.01.1976, could not cure the defect in the suit and despite Order 1 Rule 9 CPC, the suit was liable to be dismissed because in 1976 suit had became time barred as per Article 61 of the Limitation Act.
(3.) He relied upon following judgments in support of his contentions and urged that substantial questions of law as suggested in the memo of appeal are arise in the present case. (i) Ramprasad Dagduram Vs. Vijaykumar Motilal Hirakhanwala & Ors., 1967 AIR(SC) 278 regarding Right of mortgagor to redeem the property. (ii)P. Govindra Reddy & Ors. Vs. Golla Obulamma, 1971 AIR(AP) 363 regarding joining of necessary parties in the suit for redemption. (iii)Dhirndra Singh & Ors. Vs. Dhanai & Ors., 1983 AIR(All) 216 regardng presumption under Section 90 applies to original document and not their copies.;