KISHANLAL Vs. HARGOVIND

JUDGEMENT

(1.) THIS is plaintiffs' appeal arising out of a suit for redemption of the mortgage evidenced by the Deed dated 21-2-1947. Learned District Judge, Morena, having dismissed the suit, the plaintiffs are in this Court.

(2.) NEEDLESS to say that the plaintiffs based their claim on the mortgage-deed Ex. P/3 to enforce their right of redemption of the mortgage ensured under Section 60 of the Transfer of Property Act, for short T. P. Act'. The plaintiffs claimed that as per terms of the mortgage they were prepared to repay the : entire loan of Rs. 15,000/- and had served notice on the defendant who did not respond. Because the defendant was illegally enjoying the usufruct of the property, they were obliged to institute the suit. The claim was opposed by the defendant mainly on the ground that the right of the plaintiffs to redeem the mortgage had been extinguished as a result of his purchase in Court-sale of the property mortgaged. Although in para 3 of his written statement, the mortgagee admitted execution of the usufructuary mortgage, the specific plea set up in para 11 was that because of a rent-note executed by the mortgagors, their interest in the mortgaged property was that of a tenant only. Indeed, it was his further case that on the basis of the rent-note he had obtained successive decrees against the mortgagors for arrear of rent and the property was sold for Rs. 200/- to him in Court-sale, in execution of those decrees.

(3.) ALTHOUGH several issues were framed the decision in this appeal requires consideration only of the three-fold contention pressed by Shri R. D. Jain, learned counsel appearing in support of the appeal. Counsel relied squarely on the terms of Proviso to Section 60 aforesaid to submit that the right conferred under Section 60 can be extinguished only "by act of the parties or by decree of a Court" in terms of the Proviso. It is counsel's contention that only when a decree is passed in favour of the mortgagee enforcing his right of foreclosure or of putting the mortgaged property to sale in terms of the mortgage-deed, that the mortgagors' right to redemption is lost. No other "decree", passed in any suit enforcing any right of the mortgagee dehors the mortgage, would extinguish mortgagor's right of redemption ensured under Section 60. Learned counsel also relied on the provisions of Order 34, C. P. C. and indeed, placed implicit reliance on Rule 14 (1) thereof, which may be profitably extracted :.