RSA No.334 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.334 of 2008 Date of decision: 25.11.2008 Neelam Devi …… Appellant versus Subhash Chand alias Subhash Chander …….Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR GARG * * * * Present: None for the appellant. * * * * Rakesh Kumar Garg, J . The plaintiff filed a suit for injunction against the defendant on the allegations that the plaintiff is owner in possession of residential house in question on the basis of registered sale deed dated 20.2.1997. She was in need of some financial assistance and, therefore, she mortgaged the house in question without possession, with the defendant vide registered mortgage deed dated 23.4.2003. The plaintiff was not in a position to get the house in question redeemed from the defendant. The defendant is a strong and influential person and he had threatened to forcibly dispossess the plaintiff from the house in question on 28.8.2003 under the garb of the mortgage deed. Hence, the suit. Upon notice, the suit was contested by the defendant. In the written statement apart from taking various preliminary objections, it was submitted that the plaintiff mortgaged her house in question with the defendant against a loan amount of Rs.1,50,000/-. She was liable to pay interest at the rate of 2.5 % per month to the defendant on the borrowed RSA No.334 of 2008 2 amount of Rs.1,50,000/- but she failed to pay even a single penny. It is further submitted that the plaintiff was under an obligation to pay interest every month on the borrowed amount and to repay the entire borrowed amount together with interest on 25.10.2003. It is further submitted that defendant being a law abiding citizen only requested the plaintiff to pay the amount of interest becoming due every month and never threatened to forcibly dispossess her from the house in question. She is abusing the process of law by filing the present suit in order to avoid her liability of paying interest and the borrowed amount. All other allegations raised in the plaint were denied and finally, a prayer for dismissal of the suit was made. After hearing the parties, the trial Court decreed the suit of the plaintiff and the defendant was restrained from dispossessing the plaintiff forcibly from the house in question except in due course of law. It was however, held that the defendant has a right to recover his loan amount with interest advanced to the plaintiff from the sale of mortgaged property, in case the plaintiff fails to make the payment. Feeling aggrieved against the judgment and decree of the trial Court, the plaintiff filed an appeal in the Court of District Judge, Hisar which was dismissed vide impugned judgment and decree dated 30.7.2007. While dismissing the appeal the Lower Appellate Court held as under: “Admittedly the plaintiff is owner in possession of the suit land and the house was mortgaged without possession in favour of defendant. Before any action for taking possession on the basis of the mortgage could be initiated the present suit was filed. Although the defendant has denied any interference yet the learned trial Court has already decreed the suit by holding that RSA No.334 of 2008 3 the defendant shall not interfere except in due course of law. However, a right has been left to be exercised by the defendant to recover his loan from the sale of mortgaged property. The counsel for the appellant tried to find fault with this part of embargo placed upon the injunction. After hearing the parties, I find that the defendant cannot be debarred from exercising his legal right. By the judgment of even date, I have upheld that decision of the trial Court, vide which the suit for recovery against the appellant-plaintiff has been decreed and it has been ordered that if the payment is not made, then the amount can be recovered by sale of the house in dispute. In such circumstances, thus, I do not find any scope for interference in the judgment and decree passed by the learned trial Court. The appeal as such, fails and is dismissed.” Still not satisfied, the plaintiff has filed the instant appeal challenging the judgment and decrees of the Courts below whereby the right to recover the loan amount along with interest has been given to the defendant by selling the mortgaged property to the defendant-respondent. I have perused the appeal. I find no merit in this appeal. The facts of the case are not in dispute. Admittedly, the plaintiff mortgaged the house in question without possession in favour of the defendant. The defendant has denied any interference in the possession of the plaintiff and the suit of the plaintiff has been decreed by holding that the defendant shall not interfere except in due course of law. Counsel for the appellant has tried to find fault with the judgment and decrees of the Courts below RSA No.334 of 2008 4 where a right has been left to be exercised by the defendant to recover his loan from the sale of mortgaged property. The defendant cannot be debarred from exercising his legal right arising out of the mortgage deed dated 23.4.2003. There is no illegality or infirmity in the judgment and decrees of the Courts below. Thus, no substantial question of law, much less substantial, arises in this appeal. No merit. Dismissed. November 25, 2008 (RAKESH KUMAR GARG) ps JUDGE