1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT S.B.CIVIL SECOND APPEAL NO.178/1993 Dwarka Prasad & Ors. vs. Jamna Lal DATE OF JUDGMENT: 18-11-2010 P R E S E N T Hon'ble Mr. Narendra Kumar Jain,J. Mr.M.M.Ranjan, for the appellants Mr.Tara Chand appellant No.2 present in person Mr.J.P.Goyal, for the respondent Mr.Devendra S/o respondent Jamna Lal present in person BY THE COURT: 1. Heard learned counsel for both the parties. 2. Briefly stated the facts of the case are that plaintiff-respondent Jamna Lal filed a suit for redemption of mortgaged property, which was initially mortgaged for Rs.3000/- on 17th March, 1955. A further sum of Rs.1000/- was further taken as a loan against the said property on 14.12.1956. Therefore, total mortgaged amount was Rs.4000/-. It was agreed upon that interest at the rate of 14 Aana per hundred per month will be paid. Since property was handed over in possession of the defendants, therefore, the defendants were required to pay rent, which was agreed upon as Rs.10/- per month, which was to be deducted from the amount of interest. The 2 trial court decreed the suit and directed the defendants to hand over the possession of mortgaged property. Since amount of interest was not awarded, therefore, defendants preferred first appeal before the first appellate court. The first appellate court was of the view that defendants are entitled to interest of three years only and rest amount of interest has become time barred, and therefore, the same is not recoverable and no decree can be passed. The defendants preferred this second appeal on the ground that since possession of the mortgaged property was handed over to the appellants, therefore, their entire money including the interest was secured and as such they are entitled to receive the interest as per agreed rent after deducting the agreed amount of rent from the date of mortgage till the actual date of payment of the amount. 3. This court while admitting the second appeal formulated substantial question of law on 30th August, 1993. 4. During the course of arguments, learned counsel for both the parties, on instructions of their respective parties, submitted that plaintiff-respondent is ready to pay the amount of interest from the date of mortgage till the date of actual payment. Defendant-appellants 3 have agreed to hand over the actual vacant possession of the mortgaged property on or before 31st March, 2011. In these circumstances, both the parties submitted that appeal be disposed of on following terms and conditions and there is no need to decide the substantial question of law formulated by this Court. In these circumstances, there is no need to discuss and decide the question of law formulated in the case. 5. As agreed by both the parties, the present appeal is disposed off on the following terms and conditions:- (i) The plaintiff-respondent has calculated the amount of interest payable on the mortgaged amount from the date of mortgage till the actual date of payment after deducting the amount of rent, which comes to Rs.9600/-. This fact has not been disputed by the learned counsel for the appellants. (ii) Mr.Devendra S/o plaintiff- respondent Jamna Lal, who is present in court, has made the payment of Rs.9600/- in cash to appellant No.2 Tara Chand in presence of his counsel Shri M.M.Ranjan on behalf of himself and on behalf of other appellants. Shri Tara Chand has 4 stated that in fact he is in actual physical possession of the property in dispute. (iii) Shri Tara Chand–appellant No.2 has given an undertaking in writing by way of application along with affidavit today duly signed by him and his counsel Shri M.M.Ranjan on his behalf and on behalf of other appellants that vacant and physical possession of the mortgage property will be handed over to the plaintiff-respondent on or before 31st March, 2011. (iv) Plaintiff-respondent had deposited the mortgaged amount in trial court on 12.12.1989, as per direction of the trial court, and amount of interest for three years as per the judgment of the first appellate court on 18.10.1993. The appellants will be entitled to withdraw the said amount deposited by the respondent. (v) Both the parties have agreed that in case appellants do not comply with the above undertaking given by them to hand over vacant possession of mortgaged property, then respondent will be at liberty to initiate contempt proceedings 5 for breach of undertaking, before this Court in addition to execution proceedings. With the aforesaid terms and conditions and directions, second appeal is disposed off with no order as to cost. (Narendra Kumar Jain),J. BKS/-