Srinivasaiah vs H.R.Channabasappa (D) Tr.Lrs.& Ors

3) We herein set out the facts, in brief, to appreciate the issues involved in these appeals.

5) The original plaintiff - M.N. Channabasappa was the owner of the suit land (described in detail in schedule to the plaint). He fell in need of money in 1969. He, therefore, approached the original defendant No.1 - B.M. Narayana Shetty and requested him to give some money to overcome the financial crisis faced by him during that time. Defendant No.1 agreed and accordingly gave Rs.1500/- to the plaintiff by way of loan. In order to secure the repayment, the plaintiff on request made by defendant No.1 executed a document on 28.07.1969 (Ex-P-1) in favour of defendant No.1 and got the same registered with the sub-Registrar, Kanakpura. Defendant No.1 was also placed in possession of the suit property pursuant to the document.

9) It was alleged that the Ex.P-1 is a mortgage deed pursuant to which plaintiff had delivered the possession of the suit land to defendant No.1 for a period of 5 years on taking loan of Rs.1500/- from defendant No.1. It was alleged that the mortgage was created by the plaintiff of his suit land in favour of defendant No.1 only by way of security to secure payment of loan amount and in terms of condition of the deed, defendant No.1 was to enjoy the fruits of suit land for a period of 5 years and within the said period, the plaintiff was to return Rs.1500/- to defendant No.1 and, in turn, defendant No.1 was to redeem the mortgage to the plaintiff. It was alleged that the plaintiff offered Rs.1500/- to defendant No.1 but he declined and on the other hand asserted his right of ownership over the suit land and hence need to file the civil suit arose and seek aforementioned reliefs against the defendants in relation to the suit land.

10) Defendant No.1 filed the written statement and denied the plaintiff's claim. He reiterated his stand taken by him in reply to legal notice. It was alleged that document in question (Ex.P-1) is not a mortgage deed but in substance a sale deed on the strength of which he has become the exclusive owner. It was alleged that since the plaintiff failed to come forward to pay the loan amount to defendant No.1 on the expiry of 5 years, he lost the right to get the suit land restored in his name. It was alleged that defendant No.1 has already sold the suit land to defendant No.2 on 25.09.1986 by sale deed for consideration. A plea of suit to be barred by limitation was also raised.

to defendant No. 2 (appellant herein). This direction we give by taking recourse to our powers under Article 142 of the Constitution of India to do complete justice between the parties to the lis because we do not want another round of litigation to go on for years in future between the defendants inter se for recovery of this amount.

41) In the light of foregoing discussion, the appeals are disposed of by modifying the judgment and decree as under:

42) The executing Court will ensure completion of proceedings within the time fixed and will record due satisfaction of the decree in accordance with law. In case of any default, the parties will be entitled to put the decree in execution for enforcement of the terms of the decree of this Court amongst the defaulting parties.

43) In view of foregoing discussion, the appeals stand disposed of.