P.N. Shinghal, J.
1. This appeal arises from the appellate judgment and decree of the District Judge of Bharatpur, dated April18, 1961.
2. The controversy dates back to September 16, 1916 when Basudeo father of plaintiffs Narainlal and Kuhjilal, mortgaged a half portion of the suit house and a 'nohra' situated in Deeg, to defendant Sheoprasad. While the half portion of the house war mortgaged for Rs. 200/-, the 'nohra' was mortgaged for Rs 250/-, with interest, and thus the mortgage money was Rs. 450/-. It was a mortgage with possession The deed of mortgage was registered on September 19, 1916. After Badudeo's death, his two sons, the plaintiffs, instituted the present suit on August 30, 1954 for redemption of the half portion of the house. They pleaded that the mortgagee had realised so much money in the meantime, from the mortgaged property, that no part of it remained unpaid. It was therefore prayed that an account may be taken from the defendants and that if any amount was found payable by the plaintiffs, they would be willing to pay it for the redemption of the half portion of the house. Further, the plaintiffs pleaded that they and their father had been using the other half portion of the house, which had not been mortgaged to the defendant, and that it was in their possession But in spite of this defendant Sheoprasad made a sale of the entire house in favour of defendant Satyendronath on April19, 1954 and delivered its possession to him. The plaintiffs therefore pleaded that the sale was unauthorised and prayed that while possession of the mortgaged portion of the house may be given to them by redemption, possession of the remaining portion may be delivered to them because it had never been mortgaged to defendant Sheoprasad and he had no right to sell it to any one.
3. Defendant Sheoprasad denied the allegations in the plaint, except that he admitted having sold the entire house to Satyendranath and to have delivered its possession to him. He stated in his additional pleas that the house had been mortgaged to him, with possession and that Basudeo's brother was a necessary party to the suit, A plea was also taken that the suit was barred by limitation The defendant gave the version that he had instituted a suit against Basudeo for the realisation of the mortgage money amounting to Rs. 688/8/- in 1922 and that it was decreed on November 8, 1922. Further, he stated that the whole of the house was sold in execution of the decree, along with the 'nohra' because the decretal amount was Rs. 784 and that he (Sheoprasad) gave a bid at the auction sale and purchased the whole house while the 'nohra' was purchased by another person. Thus it was pleaded that the mortgage had come to an end. Some other defences were also taken, but it is not necessary to refer to them because those matters did not arise for consideration in the District Court and have not been canvassed before me. Defendant Satyendranath pleaded that he had been living as a tenant in the disputed house for a long time and that no one else was in possession thereof at that time. He further pleaded that he had spent about Rs. 3000 in improving the house after its purchase and that the plaintiffs never raised an objection when he did so.
4. A number of issues were framed by the Munsif of Deeg who ultimately dismissed the suit by his judgment dated September 24, 1956. The plaintiffs preferred their first appeal to the District Judge of Bharatpur and as it has been dismissed by the impugned judgment, the present second appeal has been preferred by them.
5. The Munsiff took the view that the plea of the defendant that he had purchased the suit house at a court auction, was not correct. This is also the finding of the court of first appeal and it has not been assailed before me by the learned counsel for the respondents. The contention of the plaintiffs-appellants is that, in face of this finding, the learned District Judge should have allowed their claim in the suit, and that he fell into an error in thinking that the entries in the court registers (Exs. A. 2 and A 6) went to show that the whole decree had been satisfied so that the mortgage did not subsist thereafter and that the possession of the mortgagee turned into possession by way of trespass. It has also been argued that the learned District Judge fell into a further error in thinking that the claim for the remaining or unmortgaged portion of the house was barred by limitation and that he misread the statement of P. W. 3 Rewti in observing that he had admitted that Same and Satyendranath had lived as tenants in the unmortgaged half portion of the house. It has also been argued that the learned District Judge committed the serious mistake of not reading that part of the statement of Rewti P. W. 3 in which he had stated that the plaintiffs' father Basudeo used to stay in his unmortgaged portion of the house until a period of nine years before the date on which he recorded his statement. For these reasons, it has been argued that the impugned judgment has been vitiated and should be set aside.
6. On the other hand, it has been argued by Mr. Parekh that the suit was not at all maintainable because the decree for sale had been obtained by Sheoprasad in 1922 and that had, according to the learned counsel, put an end to the mortgage. The learned counsel has further argued that when it has been proved that the 'nohra' which had also been mortgaged in 1916, had been sold under a court auction, the rights of the plaintiffs must be governed by the terms of the mortgage decree and not by the deed of mortgage dated September 16, 1916. The learned counsel has in this connection, placed reliance on T. Ellarayan v. N. Rangaswami Aiuar AIR 1926 Mad 816, Digambar Suthar v. Suajan, AIR 1929 Cal 233 and Sheo Narain Sah v. Mt. Deolochan Kuer. AIR 1948 Pat 208. In the alternative, the learned counsel has argued that if the plaintiffs at all wanted to bring a suit for redemption, they should first have sued for setting aside the sale which had taken place under the mortgage decree of 1922 and then prayed for redemption. For this, the learned counsel has made a reference to Ganpat Lal v. Bindbasini Prashad Narayan Singh, ILR 47 Cal 924 = (AIR 1920 PC 1); Delansingh Gan-patsingh v. Darbarilal Moolchand, AIR 1949 Nag 346; Bhan Prasad v. Bhirgu Nath, AIR 1929 Pat 323 and Shah Ram Chand v. Parbhu Dayal, AIR 1942 PC 50. The burden of the argument is that the integrity of a mortgage is inviolable and that this principle will be contravened if the plaintiffs' suit is held to be maintainable.
7. In order to appreciate the controversy regarding the maintainability of the suit, it is necessary to make a reference to certain admitted facts. As has been stated, it is not disputed that Basudeo mortgaged one half portion of the suit house to Sheoprasad on September 16, 1916. under a registered mortgage deed, for Rs. 200 and he also mortgaged a 'nohra' for Rs. 250 under the same document. It is also not in dispute that a decree was obtained on November 8, 1922 for Rs. 688/8/- and defendant Sheoprasad has himself stated that the decretal amount was Rs. 784. The record of the suit of 1922 and the decree are not available as they have been weeded out. There is however entry Ex. A. 6 in the register of thecourt dated May 28, 1928 showing that a sum of Rs. 209/12/- was deposited in cash and the amount was paid to Ramchandra who, it is admitted, held a general power of attorney on behalf of Sheoprasad. It is also admitted, and is proved by entry Ex. A. 2 in the register of the court dated December 13, 1923, and the sale certificate Ex 4 that a sum of Rs. 425 was realised by court auction of the 'nohra' and that after deducting the commission for the sale, Rs. 391/9/- were also paid to the said Ramchandra. In this way, Rs. 601/5/- were paid in all in 1923 to the decree-holder-mprtgagee. As, on the defendant's own showing, the decretal amount was Rs.784/-, and as this has also been stated to be so in Ex.A. 2, it is apparent that a sum of Rs. 182/11/- remained unpaid. There is not an iota of evidence on the record to show that this residuary amount of the decree was ever paid, and the finding of the learned District Judge to the contrary is quite erroneous and is based on a misreading of the evidence on the record.
7-A. But the question still remains whether the plaintiffs could bring a suit for redemption of the mortgaged half portion of the suit house which, it is now admitted, was never auctioned or whether they were debarred from doing so because of the fact that the 'nohra' which was the other property under mortgage, has been put to auction, and the auction had been confirmed and the sale proceeds delivered to the mortgagee. As has been stated, the suit relates to Deeg, which fell within the area of the former Bharatpur State, It has been reported, and is not in dispute, that the Transfer of Property Act was not in force in that State at the relevant time, but that the Indian Code of Civil Procedure, 1908, was in force from 1912 onwards. Order 34 Rule 5, C. P. as it stood at that time, provided that if the defendant paid into Court the amount declared to be due under the decree and the subsequent costs, the court shall pass a decree ordering the plaintiff (mortgagee) to deliver up the documents which under the terms of the preliminary decree he was bound to deliver and, if so required to re-transfer the mortgaged property as directed in the said decree and also, if necessary, to put the mortgagor in possession. Then Sub-rule (2) provided that where such payment was not made by the mortgagor, the court shall, on application made in that behalf by the mortgagee, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as mentioned in Rule4. It is therefore apparent that under the prevalent provision of the Code, the court was required to sell a sufficient part of the mortgaged property, and not necessarily the whole of it. This shows that there was nothing to prevent the court from selling the 'nohra', and not the half portion of the suit house, even under the law which wasthen applicable. Besides, it is not the case of the defendants that the mortgagee at all made an application to the execution court for the sale of the whole of the mortgaged property. In fact, as has been mentioned in the judgment-debtor (mortgagor) himself deposited Rs. 209/12 on May 28, 1923, in cash, even though there was no auction of any property by that date and thereafter, Rs. 391/9/- were realised by auction sale of the 'nohra' on December 12, 1923, totalling to Rs. 801/5/-. In 1923, therefore, the sum of Rs. 182/11/- remained unpaid and there is not an iota of evidence on the record to show that the mortgaged portion of the suit house was ever put to auction for the purpose of realising that amount. It was the duty of the defendants, if they wanted to raise a bar against the maintainability of the present suit, to show that they made an application for the sale of the mortgaged portion of the suit house within the period prescribed by the law and that the mortgage was extinguished in those proceedings. But this has not been done.
8. As it has been proved beyond doubt that the mortgaged half portion of the suit house was not sold in execution of the decree of 1922 under the provisions of Order 34 Rule5 (2) as they stood at that time, it was quite open to the mortgagor to take the benefit of the provisions of the amended Order 34 Rule 5 after they had been put in their present form because it was the law in the Bharatpur State that the Indian Civil Procedure Code shall be in force in that State subject only to such modification, in special cases, as may be necessary with reference to proved local custom or usage. It is not the case of any party that there was a proved local custom or usage to the contrary. The provisions of the amended Order 34 Rule 5 being purely procedural in nature, became, therefore, applicable to the present case also and it has to be seen whether those provisions prohibited the mortgagor from claiming back the mortgaged property after depositing the balance of the decretal amount.
9. Order 34 Rule5 C. P. C. provides that the mortgagor can rely on the equity of redemption as long as the sale of the mortgaged property is not confirmed, and it appears to me that he can exercise his right even though no order has been made extending the time for the payment of the decretal amount and the other charges. This right of the mortgagor cannot be defeated as no period of limitation has been prescribed to bar it. So when such a right has been conferred on the judgment-debtor by virtue of Order 34 Rule 5 to pay the amount of the decree at any time before the sale in the execution is confirmed, he can resort to that right even if a part of the mortgaged property has been sold in execution of the decree and the sale in respect of it has been confirmed. In such an eventuality, the judgment-debtor has only to paywhatever is left over as the balance on ac-count of the mortgage decree after taking an account of what has been repaid in respect of it, and secure a release of the remaining property. I am fortified in this view by the decision in Challappa Chettiar v. T. P. Kalyanasundaram AIR 1963 Mad 423. I have no doubt therefore that there was nothing under the law to prevent the mortgagor from claiming redemption of that part of the mortgaged property which had remained unsold and this view does not, to my mind, violate the ordinary rule that the integrity of a mortgage shall be maintained. So when a mortgagor could make an application for redemption on payment of the balance by making an application to that effect in the execution court, there can be no reason why he should be prevented from making a similar claim by a suit, rather than by an application in execution, simply because he chooses to adopt the less convenient of the two courses. In this view of the matter, it is not necessary for me to consider at any length the cases cited by Mr. Parekh because they have been based on the provisions of Section 60 or Section 69 of the Transfer of Property Act while no such Act was in force in the former Bharatpur State during the relevant period of time.
10. I would therefore hold that there is no force in the submission that the present suit is not maintainable.
The question however is whether Sheoprasad became a trespasser, as has been held by the learned District Judge. I have no doubt that this could not be so for two reasons. Firstly, as has been stated, the finding of the learned District Judge that the whole of the mortgage amount had been paid is not justified by the evidence on the record and is quite incorrect Secondly, a substantial part of the decree remained unsatisfied so that the mortgage was not extinguished at may time until the plaintiffs brought the present suit. The possession of Sheoprasad on the mortgaged half, portion of the suit house therefore continued to be that of a mortgagee and the learned District Judge fell into a serious error in thinking that his possession was that of a trespasser and ripened into adverse possession by lapse of time. There is therefore no reason why the plaintiffs should not be entitled to redeem the half portion of the suit house on payment of the balance, if any, which may be found payable under tbe decree of 1922.
11. This leaves for consideration on the dispute regarding the other half portion of the suit house which had not been mortgaged by Basudeo at all. The finding of fact of the learned District Judge in favour of the defendants on this aspect of the matter has been vitiated for the reasons mentioned by the appellants' learned counsel, to which reference has been made above, and it is necessary for me to examine it afresh.
12. It will be recalled in this connection that Sheoprasad was alive when the suit was filed and he himself signed his written statement in which he took the plea that the whole of the suit house was purchased by him at a court auction. He based his title to it on that main plea, but no certificate of sale was at all produced in proof of the plea. That sale certificates used to be issued in the former Bharatpur State as far back as 1924, will appear from Ex. 4 which is the certificate of the court sale in respect of the mortgaged 'nohra'. It has been mentioned in the certificate that it was issued under the provisions of Order 21 Rule 94 C.P.C There is no reason why such a certificate should not have 'been issued in favour of Sheoprasad if it had been true that he had purchased the suit house at a court auction. The fact that no such certificate has been produced, is therefore sufficient to disprove the plea that Sheoprasad became the owner of the entire suit house including the unmortgaged half portion of it on account of its purchase at a court auction.
13. The defendants, it appears, realised that it was not possible for them to prove their claim far the auction purchase of the entire house and so they thought of producing evidence for the purpose of proving that Sheoprasad had been in possession of the entire house. This was done with the apparent intention of showing that while the plaintiffs' evidence of possession over the unmortgaged half of the suit house was not satisfactory, the defendants had succeeded in proving their possession over the entire period of time to the exclusion of the plaintiffs. It was for this apparent reason that the defendants examined a number of witnesses.
14. I shall first consider the evidence of the plaintiffs in order to decide whether they had succeeded in proving their possession within a period of 12 years from the date of the suit. Plaintiff Kunjilal has recorded his own statement, but it is not of much consequence. Then there is the statement of Kalli P.W. 2 and I do not attach much importance to it also. Rewti P.W. 3 is however an important witness because his house is just adjacent to the suit house. He knew Basudeo and has stated that the latter used to visit Deeg after every two or four months and that he saw him staying in his portion of the house until nine years ago. The statement of the witness was recorded on January 20, 1955 and it goes to prove that the plaintiffs were in possession well within the period of 12 years from the date of the suit. It is not necessary to refer to the statement of Sohanlal P.W.4 because it relates to the purchase of the 'nohra' and the sale certificate and has no direct bearing on the question of the plaintiffs' possession. There is, however, no justifiable reason to disbelieve Rewti P. W. 3.
15. A against this is the evidence of the defendant Sheoprasad D.W. 1 is the defendant and he contented himself by making the statement that he had purchased the whole house at a court auction and that he used tolet it out and was in its exclusive possession. I have no hesitation in rejecting his testimony because, as has been pointed out, his statement regarding the purchase of the whole house is absolutely false. Ramchandra D.W. 2 is the brother of Sheoprasad and was his 'mukhtaram' at least for purposes of the present case as it was he who received the two payments of Rs. 209/12/- and 391/9/-mentioned above. He has also stated that the whole of the house was auctioned and his statement is also quite false and must be rejected. The statements of Chotelal D. W 3 and Brijbasilal D W. 5 have no bearing on the point under consideration Satyendranath D. W. 4 is the other defendant for it is he who has purchased the suit house from defendant Sheoprasad. He has not stated anything of importance beyond the assertion that he lived as a tenant in the suit house from 1949 to 1954. Even if it is assumed that this was so, it does not prove that the plaintiffs were not in possession within a period of 12 years from the date of the suit. Samre D. W. 6 has stated that he lived in the house for about three years some 20 years ago and that he was a tenant of Sheoprasad. It appears from his statement that he lived only in three 'kothas' and one 'tibari' The suit house is much bigger and in the absence of any details regarding the period of his occupation and the portion in which he lived, it cannot be concluded that he was a tenant in that half portion of the suit house whioh was not mortgaged by Basudeo. Shambhudayal D. W. 7 produced the record of the court and his statement has therefore no bearing on the point under examination.
16. It would thus appear that while the statement of Rewti P W. 3 goes to prove that Basudeo used to stay in his portion of the house until nine years ago there is no rebuttal of that evidence worth the name. Rewti was an immediate neighbour and I have no reason to disbelieve his statement. It must therefore be held that the plaintiffs have succeeded in proving their possession over the other half portion of the suit house within a period of 12 years and the contrary finding of the learned District Judge is quite incorrect and is set aside.
17. No other point has been argued and, in the result, I give judgment for the plaintiffs-appellants and allow the appeal. The impugned judgment and the decree are set aside and a direction is given to the trial court that it shall draw up a preliminary decree, after recording evidence if necessary and give the plaintiffs an opportunity to pay up the balance of the mortgage money, if any, due from them and redeem the mortgaged half portion of the suit house. So far as the other half portion of that house is concerned, the plaintiffs' claim in respect of it, is decreed. The appellants shall be entitled to their costs in allthe courts. Mr. Parekh prays for leave toappeal, but the prayer is refused.