Satya Narain & Ors vs Om Prakash & Ors

1. The material facts of the case are that on 4.3.1953 one Smt. Lado w/o Late Shri Meghraj mortgaged 1 two houses to the father of the present appellants for a sum of Rs.4000/-. After the death of Smt. Lado, her adopted son Malchand on 2.12.1958 filed a suit, being Suit No.156/58 before the Civil Judge Nagaur, Rajasthan inter alia claiming therein that the mortgaged deed was executed by one Chhoga Lal and Bajrang Lal by playing fraud upon his mother and thereby declaration was claimed that the mortgage was null and void and the possession of the property which was allegedly taken by Chhoga Lal and Bajrang Lal unauthorizedly may be restored to him.

1. Being aggrieved thereby, Malchand filed an appeal being Appeal No.13/1965 before the District Judge, Merta and the learned District Judge vide judgment and order dated 6.7.1967 allowed the appeal No.13/1965 holding inter alia that Malchand is the adopted son of 2 Meghraj and, therefore, the decree for possession of the two houses described in para 3 of the plaint and mortgaged with Mrs. Lado was passed in favour of Malchand. He was directed to pay Rs.4000/- and Rs.2064/- as interest from the date of mortgage i.e. 4.3.1953 @ 9% per annum to the date of Suit i.e. 28.11.1958 to the defendants, in all Rs.6064/- and further interest at the rate of 6% per annum from the date of Suit till payment on the original Principal amount of Rs.4000/-. It was also held that Malchand should be entitled to recover possession of two mortgaged houses described in para 3 of the plaint along with the Iron safe and Title deeds given to the defendants at the time of mortgage by Smt. Lado. While deciding the appeal, the learned District Judge also disposed of the cross-objection.

1. The subsequent purchaser Om Prakash, the respondent herein, filed an application on 12.10.1982 being Civil Misc. Case No.10/1984 under Order 34 Rule 8 of C.P.C before the Civil Judge, Merta praying for a Final Decree for the redemption of mortgage. The said claim of the respondent was contested by the appellants, inter alia, on the ground that the original suit of Malchand was not for redemption of mortgage but it was a suit for declaration that the mortgage is null and void and for possession of the property. It was also contended by the appellant that the original decree which was passed is the final decree and its execution is barred by limitation and the person who has executed the sale deed in favour of respondent herein has no authority to do so. Ultimately, the Civil Judge, Merta by judgment and order dated 9.2.1988 allowed the Civil Misc. Application of the respondent and passed a Final Decree and the following order was passed:-

10. Being aggrieved thereby, the appellant filed an appeal being Appeal No.3/1988 before the First Appellate Court and there also the learned District Judge, Nagaur dismissed the appeal by judgment dated 9.7.1990 and passed the following order:-

12. By the judgment under appeal the High Court dismissed the second appeal. In the said second appeal the following questions of law were framed:-

13. We affirm the view taken by the High Court. The appeal is, therefore, dismissed. No order as to costs.