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Ghulam and ors. Vs. Himayat Ullah - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.326
AppellantGhulam and ors.
RespondentHimayat Ullah
Excerpt:
mortgage - redemption--preliminary decree--mortgages not obtaining order absolute for sale--second suit for redemption not barred--res judicata--transfer of property act (iv of 1882), section 93. - - (1901) 194 it was clearly and distinctly held by three judges of this court that unless and until an order absolute for sale under section 93 of the transfer of property act had been obtained by the mortgagee in case of a usufructuary mortgage, the right to redeem was not lost and the mortgagor could, subsequently, bring a fresh suit for redemption.1. the facts out of which this appeal has arisen are brief. a suit for redemption of property, which had been usufructuarily mortgaged, was brought in the year 1889. a decree was passed ordering the mortgagor to pay in the amount due within a fixed period. the decree went on further to order that if the money was not paid, the property would be sold. some months after the date fixed by the decree, the mortgagor applied to the court to be put in possession of the property and tendered the amount due. the court rejected the application as the tender had not been made within the time limited by the decree. after this, no step was taken by either party. the mortgagee did not come to court and ask for a final order for sale of the property under section 93 of the transfer of property act,.....
Judgment:

1. The facts out of which this appeal has arisen are brief. A suit for redemption of property, which had been usufructuarily mortgaged, was brought in the year 1889. A decree was passed ordering the mortgagor to pay in the amount due within a fixed period. The decree went on further to order that if the money was not paid, the property would be sold. Some months after the date fixed by the decree, the mortgagor applied to the Court to be put in possession of the property and tendered the amount due. The Court rejected the application as the tender had not been made within the time limited by the decree. After this, no step was taken by either party. The mortgagee did not come to Court and ask for a final order for sale of the property under Section 93 of the Transfer of Property Act, which then applied. The present suit for redemption was brought by the mortgagor. It was dismissed by the Court of first instance, but on appeal the District Judge remanded the suit for decision on the merits. Hence the present appeal. On behalf of the appellants stress is laid on the rulings in Nakta Ram v. Chiranji Lal 7 A.L.J. 185; 5 Ind. Cas. 269; 32 A. 215 and Vedapuratti v. Vallabha Valiya Raja 25 M. 300. On behalf of the respondents, reliance is placed on the ruling in Sita Ram v. Madho Lal 24 A. 44, A.W.N. (1901) 194. In the latter case, as also in the case reported as Nakta Ram v. Chiranji Lal 7 A.L.J. 185; 5 Ind. Cas. 269; 32 A. 215 no proper preliminary decree was passed by the Court, but in the former, i.e., Sita Ram v. Madho Lal 24 A. 44 A.W.N. (1901) 194 it was clearly and distinctly held by three Judges of this Court that unless and until an order absolute for sale under Section 93 of the Transfer of Property Act had been obtained by the mortgagee in case of a usufructuary mortgage, the right to redeem was not lost and the mortgagor could, subsequently, bring a fresh suit for redemption. It is urged that the ruling in Nakta Ram v. Chiranji Lal 7 A.L.J. 185; 5 Ind. Cas. 269; 32 A. 215 does not go quite so far as this, that it has therein been held that if the preliminary decree sets forth that the property is to be sold in case the mortgagor fails to deposit the mortgage money within time, then a further suit for redemption would be barred. There is certainly language in that ruling which might be construed as meaning this but we think we are bound by the decision in Sita Ram v. Madho Lal 24 A. 44 : A.W.N. (1901) 194 whatever our opinion may be. It is a decision of three Judges and no dissent has been expressed from it in this Court. On the reasoning in that case, the present suit is not barred and the decision of the Court below is correct. We dismiss the appeal with costs.


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