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Ram Baran Rai and ors. Vs. Har Sewak Dube and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in45Ind.Cas.488
AppellantRam Baran Rai and ors.
RespondentHar Sewak Dube and ors.
Excerpt:
bengal regulation xvii of 1806, section 8 - mortgage by way of conditional sale--foreclosure proceedings--notice, service of--evidence--redemption. - - of course if it has been extinguished, the suit fails not by reason of any bar of limitation, but because the plaintiffs have failed to prove their cause of action, namely, a subsisting right to redeem......is, however, a bench decision of this court in which the same principles have been applied to a suit for redemption exactly on all fours with the suit now before us. we refer to the case of badal ram v. taj ali, 4 a.l.j. 7l7 : a.w.n. (1907) 266. we have been asked to re-oonsider the decision in that case; but we do not ourselves see any adequate reason to dissent from it, and in any case we prefer to follow it on the principal of stare decisis. the evidence relied upon by the learned district judge, as proving that the equity of redemption was extinguished by reason of the proceedings taken in 1876, was not evidence which could be accepted as establishing the facts sought to be proved on behalf of the defendants, and the decision of the district judge on this point is based upon an.....
Judgment:

1. This was a suit in which the plaintiffs claim redemption of a mortgage by conditional sale effected on the 27th of December 1866. The plaintiffs are the son and grandsons of the original mortgagor, and the defendants are the sons and grandsons of the original mortgagee. The fact of the mortgage is admitted, and we find that it was never pleaded that the said mortgage, if redeemable at all, was redeemable only for a larger sum than that tendered by the plaintiffs. The defendants, however, contended that the equity of redemption had been extinguished by reason of certain proceedings taken in the year 1876 by the mortgagee under Section 8 of Regulation XVII of 1806. Both the Courts below have found in favour of the defendants on this point and have added a finding that the present suit is barred by limitation. This latter finding, as it stands, is difficult to accept. The suit was one for redemption and' was brought within the statutory period of limitation. Either the equity of redemption has been extinguished, or it has not. Of course if it has been extinguished, the suit fails not by reason of any bar of limitation, but because the plaintiffs have failed to prove their cause of action, namely, a subsisting right to redeem. If, on the other hand, the equity of redemption has not been extinguished, the suit is obviously within time. The essential question for determination is whether the proceedings taken by the mortgagee in the year 1876 had the effect of extinguishing the equity of redemption. This must detend in the first instance upon whether the mortgagee caused the mortgagor, or his legal representative, to be served with a copy of his own written application for foreclosure and also with a notice or perwana under the seal and official signature of the District Judge, warning him that the mortgage would be finally foreclosed in the event of his failing to redeem within a period of one year. The evidence by which it is sought to piove this fact consists of certain records of the proceedings of the Court of the District Judge of Gorakhpur. There is abundant authority to support the proposition that such records cannot be accepted as prima facie proof of the fact of service. It has been contended before us on behalf of the respondent that most of the decisions on the point were pronounced in cases in which the mortgagee had come into Court asking for a decree for possession, or a decree declaring his proprietary title, after he had taken the requisite proceedings under Regulation XVII of 1806. There is, however, a Bench decision of this Court in which the same principles have been applied to a suit for redemption exactly on all fours with the suit now before us. We refer to the case of Badal Ram v. Taj Ali, 4 A.L.J. 7l7 : A.W.N. (1907) 266. We have been asked to re-oonsider the decision in that case; but we do not ourselves see any adequate reason to dissent from it, and in any case we prefer to follow it on the principal of stare decisis. The evidence relied upon by the learned District Judge, as proving that the equity of redemption was extinguished by reason of the proceedings taken in 1876, was not evidence which could be accepted as establishing the facts sought to be proved on behalf of the defendants, and the decision of the District Judge on this point is based upon an erroneous view of the law and is open to interference by this Court under Section 100 of the Code of Civil Procedure. We may note that the Bench case to which reference has already been made was also decided in second appeal. This consideration is sufficient to dispose of the present appeal. We set aside the decrees of both the Courts below and in lieu thereof we give the plaintiffs a decree for redemption to be drawn up in the form prescribed by Order XXIV, Rule 7, of the Code of Civil Procedure, allowing redemption of the property in suit on paymentof thesumof Rs. 393-1-0 (rupeesthree hundred and ninety-three and anna one only) on account of principal and interest within three months from this date. The plaintiffs will be entitled to their costs in all three Courts.


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