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Mohamdi Begum Vs. Tufail Hasan - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1926All20
AppellantMohamdi Begum
RespondentTufail Hasan
Excerpt:
- - ' the plaintiff failed to pay the amount in time and failed to apply for execution within three years......out of a suit for redemption. it appears that on a previous occasion the plaintiff instituted a suit for redemption of this very mortgage and obtained a compromise decree in december 1916. the decree, as framed, was not in accordance with the compromise and was accordingly subsequently corrected in april 1924. the amended decree stood as follows: 'on payment of rs. 225 to the defendant within one month of the date of the compromise the plaintiff would be entitled to get the property redeemed and put in possession but after the expiry of the fixed period he will be entitled to execute his decree on payment of rs. 229. parties shall bear their own costs.' the plaintiff failed to pay the amount in time and failed to apply for execution within three years. he however has brought a second.....
Judgment:

Sulaiman, J.

1. This is a defendant's appeal arising out of a suit for redemption. It appears that on a previous occasion the plaintiff instituted a suit for redemption of this very mortgage and obtained a compromise decree in December 1916. The decree, as framed, was not in accordance with the compromise and was accordingly subsequently corrected in April 1924. The amended decree stood as follows: 'On payment of Rs. 225 to the defendant within one month of the date of the compromise the plaintiff would be entitled to get the property redeemed and put in possession but after the expiry of the fixed period he will be entitled to execute his decree on payment of Rs. 229. Parties shall bear their own costs.' The plaintiff failed to pay the amount in time and failed to apply for execution within three years. He however has brought a second suit for redemption of that property. The trial Court dismissed the suit holding that the claim was barred by the provisions Section 11, Civil P.C. On appeal the learned Subordinate Judge has taken the contrary view and remanded the case for trial of the other points involved in the case. In our opinion the view taken by the lower appellate Court is correct When it is borne in mind that the original mortgage-deed was a usufructuary mortgage, a suit for redemption of that mortgage, in spite of a default of payment of the mortgage money within the time fixed, can be brought. If there had been no compromise, the proper course would have been that the property would be sold and the mortgage money realized thereby. By mere lapse of the time fixed, the mortgagee does not become the absolute proprietor of the mortgage property. The case, however, was compromised and the decree was passed in terms of the compromise. The compromise nowhere expressly stated that in default of the payment of Rs. 225 within one month the plaintiff's right to redeem would be extinguished or that his exclusive remedy would be to apply for execution. We may note that the decree as originally framed bore a clause that in default of payment his right to redeem would be extinguished, but the Court subsequently corrected this, holding that it was not in accordance with the compromise. It seams to us that when under the compromise the parties did not agree that his right to redeem would be extinguished absolutely, he is not prevented from bringing a second suit for redemption, and the mortgagee is still a mortgagee and has not become the absolute proprietor of the property. In support of our view we may refer to the case of Hari Ram v. Indraj AIR 1922 All 377 which has been followed by the Punjab High Court in the case of Arura v. Bir Singh AIR 1925 Lah 31. We accordingly dismiss this appeal with costs.


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