Apex Law Journal
Apex Law Journal
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Editor

Neha Goel, Advocate

Advisory Board

S.C. Khunger, Advocate

Rohit Bansal, Advocate

Varinder Singh Kanwar, Advocate

Hittan Nehra, Advocate

Judgments on Suit for redemption of mortgage property

Thursday, June 12, 2008
Suit for redemption of mortgage property

Suit for redemption of mortgage property — Plaintiffs' predecessor, in the present case, executed a usufructory mortgage in favour of the appellants for a sum of Rs.10,000/- — The terms of the said mortgage deed were that the mortgagee shall remain in possession of the mortgaged property without paying rent and that the mortgage amount of Rs.10,000/- shall carry no interest — The period of redemption was five years from the date of mortgage — However, the mortgagers continued in possession of the mortgaged property as tenants of the mortgagee on a monthly rent of Rs.97.50 — As the plaintiffs/mortgagors failed to pay rents, suit being O.S. No.120/51-52 was filed for recovery of Rs.1,225/- towards arrears of rent by the mortgagee — The suit was decreed and the property was put in auction in execution and the mortgagee/second defendant purchased the schedule property in court auction on 11.09.1952 — The sale was confirmed under Order XXI Rule 92 CPC — The respondents/mortgagors neither objected for the sale nor confirmed the sale or taken any steps to set aside the sale over three decades — On 18.2.1983, the plaintiffs/respondents, after nearly three decades, filed a suit for a decree of redemption of the mortgage of the suit schedule property sold in public auction as long back as on 11.9.1952 — The Civil Judge, after considering both oral and documentary evidence, dismissed the suit with costs — The High Court, however, allowed the appeal decreeing the suit for redemption — Held, the High Court was right in granting preliminary decree for redemption on two grounds, firstly, the suit by the mortgagee was not in terms of Rule 14 of Order XXXIV. Bringing the mortgaged property for sale by the appellants in execution of the decree passed in O.S. No.120/51-52 and purchasing the same by the appellants in public auction is clearly barred under Order XXXIV Rule 14 CPC as Rule 14 of Order XXXIV CPC  prohibits the mortgagee to bring the mortgaged property to sell otherwise than by instituting a suit for sale in enforcement of the mortgage — Secondly, in view of Section 90 of the Indian Trusts Act, 1882, the right to redeem the mortgage is not extinguished and in the eye of law the purchase of the mortgaged property in pursuance of the decree for rent arrears must be deemed to have been made in trust for the mortgagor — Appeal dismissed — Transfer of Property Act, 1882, Sections 58(d) and 60 — Civil Procedure Code, 1908, Order 34, Rule 14 — Indian Trusts Act, 1882, Section 90.

 
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