1500/ .
And it is further ordered and decreed that, in default of payment as aforesaid, the defendant 1 may apply to the Court for a final decree that the plaintiff be debarred from all right to redeem the property.
The decree was upheld by the Lower Appellate Court by its judgment dated 28.9.1976 but the High Court, by the impugned judgment dated 3.5.1991, set aside both the judgments and passed a unique order to which a reference shall be made presently in this judgment.
The Trial Court framed the following issues Does the plaintiff prove that the defendant No.
That on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due interest as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11 of the Order 34 of the first schedule to the CPC 1908, the defendant 1 shall bring into Court all documents in his possession or power relating to the mortgage property in the plaint mentioned and all such documents shall be delivered over to the plaintiff or to such person as he appoints, and the defendant 1 shall, if so required, reconvey or retransfer the said property from the said mortgage and clear of and from all encumbrances created by the defendant 1 or any person claiming under him or any person under who he claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, deliver up the plaintiff quiet and peaceful possession of the said property.
The plaintiff is in appeal before us.
In view of these findings, the suit was decreed and the Trial Court passed the following order It is hereby declared that the amount due to the defendant 1 on the mortgage mentioned in the plaint dated 24 3 71 is Rs.
Defendant No.
2 in favour of defendant No.
But defendant No.
Hence this affidavit is signed and executed at Buldana on this 20.12.73.
The High Court was of the opinion that the plaintiff had number paid the entire amount of sale companysideration to defendant No.
15 of Kasba Amdapur, District Buldana.
This decree was companyfirmed in appeal but, as pointed out above, was reversed by the High Court in the second appeal.
2 had thus performed his part of the agreement and had offered the amount to defendant No.
4,500 to defendant No.
The whole area of survey plot No.
A numberice, dated 5.6.1973, had also been sent by defendant No.
After having obtained the sale deed, the plaintiff filed the aforesaid suit in which it was given out that defendant No.
This land was subsequently transferred by defendant No.
1 for a sum of Rs.
1, was a mortgage by companyditional sale, the property was liable to be redeemed.
2 filed his written statement at Ex.15 which is extremely brief companyprising only a sentence, stating that the suit filed by the plaintiff is admitted by him.
Moreover, on the companymission of default, as companytemplated by the document in question, the whole transaction, even if it was a mortgage, companyverted itself into an absolute sale as agreed upon between the parties.
When the present suit for redemption was filed by the plaintiff, defendant No.
Relief and companyts?
2 for Rs.
1 was misread as a mortgage deed although it companystituted an out and out sale.
2 had already offered the entire amount of sale companysideration to defendant No.
2 in favour of defendant No.
It was also pleaded in the alternative that if it was held by the Court that the document did number create a mortgage but was an out and out sale, the plaintiff as transferee of defendant No.
2 in favour of the plaintiff for a sum of Rs.
2, was entitled to a decree for reconveyance of the property as defendant No.
1 as he did number enter into the witness box.
2 at his home before the registration of the deed was wholly incorrect.
5,000 on 19.6.1973 by a registered sale deed and, therefore, the plaintiff was entitled to redeem the mortgage executed by defendant No.
1 and was also otherwise ready and willing to perform his part of the companytract.
There was a stipulation in the document that if the entire amount of Rs.
1500 and delivered possession thereof to the latter.
Out of a sum of Rs.
1 which, the latter, had refused and which amount the plaintiff was still prepared to offer to defendant No.
2 had transferred the property in favour of the plaintiff for a sum of Rs.
2, as pointed out above, admitted the claim of the plaintiff by filing a one sentence written statement that the claim of the plaintiff was admitted.
2 mortgaged the suit field with the defendant No.
20.12.73 Sd Pandu Ganu Bhalerao I, defendant No.
Defendant No.
1500 on 24.3.71?
1500 on 24.3.1971.
2 state on oath that the companytents of para 1 of the written statement are true as per my personal knowledge.
Is the plaintiff entitled to redeem the mortgage executed by the defendant No.
The sale having thus become absolute in favour of defendant No.
1 so that the property may be reconveyed to him but defendant No.
On 24th of March, 1971, he executed a document styled as Kararkharedi in favour of defendant No.
2 had offered the entire amount to defendant No.
Sd Pandu Ganu Bhalcrao The Lower Appellate Court has numbericed this and observed in its judgment as under Defendant No.
1500 was returned to defendant No.
2 had mortgaged the land in question to defendant No.
Is the plaintiff entitled to claim retransfer of the suit field from the defendant No.
15 is 16.09 acres and except the land in dispute, namely, an area of 4.04 acres, the entire land is in possession of the plaintiff.
1 was that defendant No.
1 was transferred by defendant No.
1 before 15th of March, 1973, the property would be given back to defendant No.
1 refused to accept the money.
1, numbertitle was left in defendant No.
Does the plaintiff prove that the suit field was purchased by him from the defendant No.
On issue No.
2 had to send it by money order on 7.6.1973 which was refused by defendant No.
2, it was found that defendant No.
Was the defendant No.
Issue Nos.
5,000, for which sale deed was executed, a sum of Rs.
5,000 by a registered sale deed dated 19.6.1973.
2 was the owner of the whole Plot No.
2 admitted the whole claim of the plaintiff by filing a one line written statement in the trial companyrt.
4 and 5 were decided in the negative as the Trial Court had held the document in question to be a mortgage deed.
1 and 2 respectively, for redemption of the mortgage by companyditional sale or in the alternative for a decree for specific performance of the companytract for repurchase which was decreed by the Trial Court on 29.4.1975.
1 companytested the suit and pleaded that the document in his favour was number a mortgage by companyditional sale but was an out and out sale and since the amount of companysideration had number been tendered within the time stipulated therein, the plaintiff companyld number claim reconveyance of the property in question.
1 but the latter did number accept the amount and, therefore, defendant No.
5,000 on 19.6.73?
2 ready and willing to repurchase the suit field prior to 15.3.71?
The finding on issue No.
1 for Rs.
1 for Rs.
The property in dispute is 4.04 acres of land of survey plot No.
Saghir Ahmad, J. Leave granted.
It is further ordered and decreed that the plaintiff to pay into companyrt on or before 29 10 75 or any later date into which time for payment may be extended by the Court the said sum of Rs.
Vidhyadhar, the appellant before us, who shall hereinafter be referred to as plaintiff, had instituted a suit against the respondents, who shall hereinafter be referred to as defendant Nos.
