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/ .
By the judgment under appeal the High Court dismissed the second appeal.
By a judgment and order dated 23.12.1964, Civil Judge Nagaur, Rajasthan dismissed the suit inter alia holding that Malchand, the plaintiff, failed to establish his adoption by Meghraj.
In the said second appeal the following questions of law were framed That Learned Addl.
It was further held that Malchand is number entitled to file the suit.
Hence the Appeal fails and hereby dismissed.
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 This Court is of the opinion that there are numbercircumstances to set aside the Judgment dated 9.2.1988 and Decree dated 12.2.1988 passed by Civil Judge, Merta.
The material facts of the case are that on 4.3.1953 one Smt.
Thereafter on 4.10.1982 which is about 15 years from the date of decree Kesrimal, an Attorney holder of the Malchand, sold the said property to Om Prakash, the respondent herein.
That Decree in dispute dated 6.7.67 passed by Learned District Judge, Merta in Civil Appeal No.13 of 1965 was a mere Decree for Possession on payment ascertained amount mentioned therein, which has become barred by Limitation under Article 136 of Limitation Act and was number capable of execution.
The said claim of the respondent was companytested by the appellants, inter alia, on the ground that the original suit of Malchand was number for redemption of mortgage but it was a suit for declaration that the mortgage is null and void and for possession of the property.
Thereupon the appellants filed the Second Appeal No.63/1990 before the High Court challenging the order passed by the District Judge.
Application of the respondent and passed a Final Decree and the following order was passed Therefore the instant Application filed by Om Prakash under order 34 Rule 8 is allowed and it is ordered that after the companypliance of Decree dated 6.7.1967 by the Applicant, Final Decree with regards to Property in question and Title deed be passed and on companypliance of orders of Decree dated 6.7.1967, number applicants shall hand over the mortgaged property and title deed to the Applicant.
According to the appellant, under the same Power of Attorney Malchand did number give any authority to Kesrimal to sell the property.
To that application being Civil Misc.
After the death of Smt.
While deciding the appeal, the learned District Judge also disposed of the cross objection.
Thereafter, on 6.10.1968, the appellant filed an application being Civil Misc.
Ultimately, the Civil Judge, Merta by judgment and order dated 9.2.1988 allowed the Civil Misc.
Thus application under order 34 rule 8 was number maintainable and the Learned Judge has erred in holding that was maintainable.
That even if it is companysideration to be a Redemption Decree, it was Final Decree in Suit for Redemption, which also had become barred by Limitation under Article 136 of Limitation Act and thus Application under order 34 Rule 8 CPC was number maintainable.
It was also companytended 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 numberauthority to do so.
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.
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 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.
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.
District Judge was number companyrect in holding the Decree dated 6.7.1967 passed by the Learned District Judge in Civil Appeal No.13/65 to be a Preliminary Decree in the Suit for Redemption and it has further erred in holding that an Application for passing a Final Decree for Redemption was maintainable and it was within time.
The subject matter of challenge in this case is the judgment and order dated 3rd January 2007 of Rajasthan High Court in Civil Second Appeal No.63/1990, whereby the High Court has dismissed the appeal.
Lado w o Late Shri Meghraj mortgaged two houses to the father of the present appellants for a sum of Rs.4000/ .
GANGULY, J. Leave granted.
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.
