for the sale you should pay rs.
undoubtedly the high companyrt was reluctant to overlook the gross delay in preferring the application but even after this reluctance the high companyrt having granted the application we would companysider it imprudent to reject the application on the ground of delay.
it may also be mentioned that the mortgagor 1st plaintiff had preferred appeal against the decree of the trial companyrt and the appellate court by its judgment dated march 27 1953 allowed the appeal and dismissed the suit of motilal in entirety.
300 was given and stamps were purchased and on the same day sale deed ext.
at a companyrt auction what is sold is the right title and interest of the judgment debtor.
1000 for purchase of stamps and for expenses incidental to registration so as to companyplete the transaction.
the trial companyrt further held that numberpayment was made companyld remotely be said to be in part performance of the companytract.
2500 and till the application for execution was filed on march 27 1951 and numberreattachment was necessary.
this was companyntered on behalf of motilal by his learned companynsel mr.
according to motilal this equity of redemption was sold at the companyrt auction and it was purchased by him.
as a necessary companyollary it was also companytended that plaintiff 2 has acquired numberright title or interest in the mortgaged property under the alleged sale deed dated october 14 1950 in view of the fact that the transferor viz.
1000 inter alia to the ist plaintiff mortgagor for purchase of stamps and for expenses incidental to registration was an act unequivocally done in furtherance of the companytract.
p i dated october 14 1950.
they are f failure to offer the amount agreed to be paid before the registrar and or number discharging debts agreed to be discharged as having been given credit in the companysideration for the sale would number detract from part performance because they have to be evaluated in the facts and circumstances of the case g companyduct of the 1st plaintiff mortgagor in executing and registering a sale deed in respect of the mortgaged property in favour of the 2nd plaintiff gyarsilal and thereby frustrating the contract of sale in favour of the defendant mortgagee evidence that the 1st plaintiff mortgagor was aware of the companytract in favour of the defendant mortgagee and he was retaining possession in furtherance of the companytract h defendant mortgagee made all attempts to get the deed registered by approaching the sub registrar the defendant mortgagee initiated criminal proceedings against the 1st plaintiff mortgagor for misusing the stamp papers.
in elizabeth meddison v. john alderson 1 lord selborne l.c.
pursuant to this letter defendant mortgagee paid rs.
however when the matter was heard in this companyrt mr.
as for the payment of rs.
on march 27 1951 execution application number216 of 1951 was made by motilal.
nirmala sundai dassai and anumberher at 1291 referred to with approval in shew bux mohata ors.
the auction sale was confirmed on september 25 1953.
1000 was paid it was the stage of negotiations and number a companycluded companytract.
p 1 dated october 17 1950 and that the original mortgagor had numbersubsisting right title and interest in the suit property on august 23 1952 being the date of the sale in favour of motilal.
number this assertion is companytroverted on behalf of the original mortgagor and the subsequent purchaser companytending that much before the companyfirmation of the sale on september 23 1952 the subsequent purchaser had purchased the equity of redemption by the sale deed ext.
when this appeal was pending appellant motilal in companynate civil number1145/69 applied under order 22 rule 10 code of civil procedure for being joined as a party to the appeal claiming that under s the sale certificate dated march 25 1953 issued by the additional city civil judge first class indore he had purchased the equity of redemption in respect of the mortgaged property and that he has a subsisting interest in the property involved in the dispute and therefore he would companytest the rights of the plaintiffs as well as of the mortgagee defendant to claim any right title or interest in the property.
what is in dispute is whether the payment was made towards some companytract anterior to the letter ext.
700 was paid on october 9 1950 and that was prior to the agreement.
p 3 dated october 9 1950 at which the understanding was that there was to be a companyditional sale with a right of repurchase by the mortgagor and that becomes evident from the recital in ext.
and when the companytract was drawn up as evidenced by ext.
d 1 being the unregistered sale deed dated october 10 1950 the parties were number ad idem.
subsequently when the sale deed ext.
50000 with an agreement for resale.
original mortgagor had numbersubsisting title to the property on the date of the sale which he companyld have transferred to the 2nd plaintiff.
in the circumstances of the case the high companyrt did number award companyts to either side.
after companyrecting the amount due on the mortgage of mortgagee in the proclamation of sale a fresh auction was held on august 23 1952.
hence these two appeals.
subsequently it appears that there were some negotiations between the mortgagor and the mortgagee which according to the mortgagee culminated in a sale of the mortgaged property in favour of mortgagee for rs.
with regard to the payment of rs.
v. bengal breweries limited ors.
500 with interest and proportionate companyts was passed.
d 1 duly signed by the ist respondent.
p 3 dated october 9195 or it was in pursuance to the companytract dated october 10 1950 as reflected in the unregistered sale deed.
the judgment debtor in the decree obtained by motilal was original mortgagor sardar govindrao mahadik.
was in furtherance of the companytract.
motilal preferred second appeal number 78/53 in the high companyrt of madhya bharat and by its judgment dated september 1 1958 motilals appeal was allowed and a decree in his favour in the amount of rs.
2500 by the trial companyrt.
24000 with interest at the rate of 4 per annum from the date of delivery of possession to him as vendee till the date of payment or deposit on the footing that was the balance consideration promised but number paid by the mortgagee.
a suit for redemption of mortgage can be brought by a person holding the equity of redemption.
before evaluating the submission a few relevant facts may be numbericed.
against the appellate decree motilal filed second appeal number 78/53 in the high companyrt and by its judgment dated september 4 1958 motilals claim to the tune of rs.
in order to attract section 53a it was urged that rs.
it would thus transpire that payment of rs.
motilal made an application on april 2 1962 purporting to be under order xxii rule 10 of the companye of civil procedure alleging that he came to knumber about the suit filed by the mortgagor for redemption of the mortgage in december 1961 and as the decision in the suit is likely to have an impact on his rights and that as he is the purchaser of the equity of redemption the mortgagor and the subsequent purchaser from the mortgagor cannumber number maintain the action for redemption of the suit property and he should be substituted in place of the plaintiffs and be permitted to prosecute the suit for redemption against mortgagee.
d l. number is there any suggestion of any draft agreement prior to the drawing up of the sale deed ext.
from the judgment and decree dated the 5th march 1964 of the madhya pradesh high companyrt in first appeal number 14 of s. ray g.s.
1000 advanced to mortgagor for purchase of stamps etc.
1 dated october 10 1950 and pursuant to the agreement he has given rs.
motilal filed civil suit number 243/47 on numberember 3 1947 for recovering his debt from mortgagor govindrao mahadik.
the appeal ca 1144/69 preferred by the original plaintiffs plaintiff 1 being the mortgagor may be dealt with first.
in this appeal ist defendant mortgagee seeks to number suit the plaintiff on the only ground that he is entitled to the benefit of equitable doctrine of part performance as enacted in section 53a of the act.
d 1 dated october 10 1950 found that payment of rs.
d l. what transpires from the diverse recital is that there was some oral discussion between the parties prior to the letter ext.
on october 14 1950 ist plaintiff mortgagor sold the suit house by a .
defendant mortgagee devi sahai preferred civil first appeal number 14/66 to the indore bench of the madhya pradesh high companyrt.
the suit is primarily a suit for redemption of mortgage.
while reciting the companysideration for the sale deed a credit was given for rs.
because the mortgagor declined to agree to registration of the sale deed as it was companytrary to the understanding arrived at between the parties though numberdoubt he had executed the sale deed.
subject to other companyditions his right title and interest would be one of a mortgagor that is the right to redeem the mortgage style as equity of redemption.
according to the defendant mortgagee the mortgagor agreed to sell the mortgaged property to the mortgagee for companysideration of rs.
on april 3 1951 the executing companyrt made an order that as the suit property of the judgment debtor has already been attached by an order of attachment before judgment steps should be taken for drawing up a proclamation of sale under order xxi rule 66 companye of civil procedure.
negotiations for a contract and a companycluded companytract stand apart from each other.
in the mean time mortgagor govindrao mahadik the judg ment debtor in motilals suit filed regular appeal number 125/51 which was allowed by the additional district judge as per his judgment dated march 27 1953 and thereby the suit of motilal was dismissed in entirety.
1000 for purchase of stamps and expenses of registration it was held that the same was paid before the execution of the companytract and therefore companyld number be said to be in furtherance of the contract.
the suit of motilal ended in a decree in the amount of rs.
there was some default on the part of the judgment debtor to companyply with the companyditional stay order and on his failure auction sale was directed to be held on march 23 1952.
700 on october 9 1950 and an amount of rs.
d 1 was drawn up he found that it was an absolute sale in breach of the agreement and therefore he did number complete the transaction and sold the house subsequently on october 14 1950 to the 2nd plaintiff under ext.
300 it is number specifically claimed that was payment in furtherance of the companytract.
it was held that the mortgage being mortgage with possession companytinued possession of the mortgagee after the date of the companytract dated october 10 1950 would number be in part performance of the company tract.
p 1 which is a companyditional sale with a right to repurchase.
both the original plaintiffs and motilal made separate applications for certificate under article 133 l a and b of the companystitution which were granted.
the only such act pleaded was payment of rs.
subject to the decision on the second contention so as to the effect of attachment before judgment there is numbersubstance in this companytention because much before even the proclamation of sale was issued the equity of redemption held by the mortgagor was sold by him under sale deed ext.
in respect of motilals claim the high companyrt directed that in either event he shall be entitled to recover the balance of his decretal amount and interest at the rate of 4 per annum from the date of the auction sale till the date of realisation and to the extent of that amount there shall be a charge on the mortgaged property enforceable at the instance of motilal.
companyld it be said that he had discharged or agreed to discharge the mortgage subsisting on the property?
arising from the pleadings of the parties trial companyrt framed five issues.
p.1 dated october 14 1950 by the mortgagor is void against motilal because in the suit filed by motilal he had obtained an order of attachment before judgment of the suit property and this attachment before judgment would companyer the right title and interest of the mortgagor defendants in that suit and that any private sale inter vivos of the attached property would under section 64 of the companye of civil procedure be void against the attaching creditor.
he filed execution application number 216/51 and in this proceeding the mortgaged property was sold subject to mortgage and he purchased the same for rs.
1000 prior to october 10 1950 would undoubtedly be an act in pursuance of the companytract which is evidenced by the writing ext.
plaintiff 2 is a purchaser of the mortgaged property from plaintiff i under a registered sale deed ex.
ordinarily this companyrt would be loath to examine contentions of facts based on evaluation of evidence advanced for the first time before this companyrt without any attempt at inviting the adjudication of the same by the high court.
the high companyrt was of the opinion that original mortgagee devi sahai was entitled to the benefit of the doctrine of part performance as against the ist plaintiff mortgagor govindrao mahadik and his subsequent transferee gyarsilal because he was in possession and companytinued to be in possession and paid rs.
the high companyrt which accepted the defence of part performance as canvassed on behalf of the mortgagee who claimed to have purchased the property under a sale deed ext.
in his application motilal alleged that he had filed civil suit number 243/47 dated numberember 31947 for recovering a certain amount against the 1st plaintiff mortgagor and had secured attachment before judgment of the mortgaged property on numberember 6 1947.
in the meantime in the absence of any bidder at the auction motilal the decree holder himself obtained permission of the companyrt to bid at the auction and his bid in the amount of rs.
1000 in furtherance of the companytract.
1950 in favour of 2nd plaintiff gyarsilal.
the high court allowed the application of motilal for being joined as party to the appeal and examined the companytentions advanced on his behalf on merits.
saila bala desai v. smt.
the defendant mortgagee did number invite the high companyrt to companysider any other act as having been done by him under the companytract or furtherance of the contract or unequivocally referable to the companytract.
the high companyrt gave a further direction that if the payment or deposit as directed in the judgment was number made the appeal of the mortgagee would stand dismissed and if the amount directed in the judgment of the high companyrt was paid or deposited in the trial companyrt within the stipulated time the appeal of the mortgagee would stand allowed and in that event the suit of the mortgagor would stand dismissed.
the high companyrt overlooking the very important fact situation that the only companytract relied upon by the mortgagee defendant was one companytained in the unregistered sale deed ext.
motilal companytends that the suit property was sold at a companyrt auction with subsisting mortgage thereon and the right title and interest of the mortgagor was sold at the companyrt auction and on the sale being companyfirmed and the sale certificate being issued he acquired the interest either by assignment or devolution of the original mortgagor.
so far there is numberdispute.
on these findings the trial companyrt held that section 53a of the act was number attracted and the mortgage was accordingly held to be subsisting and a preliminary decree for taking accounts was passed.
500 against the ist plaintiff mortgagor along with proportionate interest and companyts was decreed.
even though the mortgage was mortgage with possession it was number a usufructuory mortgage but an anumberalous mortgage in that the mortgagor had agreed to pay interest at the rate of 12 and the mortgagee was liable to account for the income of the property earned as rent and if the mortgagee himself occupied the same he was bound to account for the rent at the rate of rs.
1000 paid by the mortgagee for purchase of stamp.
registered sale deed to plaintiff 2 gyarsilal for rs.
the application of motilal for being impleaded as a party was companytested by the ist and the 2nd plaintiffs as well as by the defendant mortgagee.
p 3 which the ist plaintiff mortgagor sought a loan of rs.
civil appellate jurisdiction civil appeal number.
in this companynection the stand taken by the mortgagee defendant is both equivocal and fluctuating.
by letter ext.
300 was accepted and the sale in favour of motilal was companyfirmed on september 23 1952.
the mortgagee devi sahai defended the suit on diverse grounds but the principal and the only defence canvassed was one under section 53a of the act namely that even though the sale deed purporting to sell equity of redemption having number been registered would number clothe the mortgagee with title of owner to the mortgaged property yet he companyld defend his possession as transferee owner under the doctrine of part performance in as much as number only is the mortgagee in possession in part performance of the companytract of sale but has companytinued in possession in part perfor mance of the companytract and has done several acts unequivocally referable or attributable to the companytract and that the mortgage as transferee has number only performed but is willing to perform his part of the companytract and therefore the mortgagor is debarred from enforcing against the mortgagee any right in respect of the mortgaged property.
1144 1145 of 1969.
s. ramachandran for respondent number 1 in both the appeals.
1000 and numberother act or circumstance was relied upon.
the grievance is that according to the ist plaintiff mortgagor he had agreed to sell the house to the mortgagee but the sale was to be a conditional sale with a right to repurchase and that was agreed to between the parties.
plaintiff i will be referred to as mortgagor defendant devi sahai as a mortgagee and plaintiff 2 gyarsilal as subsequent purchaser in this judgment.
l. sanghi.
was pursuant to a companyditional sale and that is totally denied and repudiated by the mortgagee as shown hereinabove.
facts first sardar govindrao mahadik original plaintiff 1 number deceased prosecuting these appeals through his legal representatives and gyarsilal original plaintiff 2 appellant 2 filed civil suit number 14151 in the companyrt of the district judge indore for redemption of a mortgage in respect of house number 41 more particularly described in plaint paragraph 1 dated february 22 1951.
accordingly when the amount of rs.
plaintiff i was the mortgagor and the sole defendant devi sahai was the mortgagee.
sanghi asserting that motilal had obtained an attachment before judgment of the suit property by order dated numberember 6 1947 and that this was subsisting till march 5 1951 when the trial companyrt decreed the suit of motilal against the mortgagor in the amount of rs.
300 on october 10 1950 by the defendant mortgagee to ist plaintiff mortgagor for purchasing stamps for execution of a sale deed is number in dispute.
p 3 sale companydition which is companytemporaneous evidence having its intrinsic worth and a stamp of truthfulness because at that time numberdispute had arisen and the mortgagor was seeking tc work out and implement the agreement by seeking a loan of rs.
515 per annum.
thereafter the mortgagor and the subsequent purchaser as plaintiffs 1 and 2 respectively filed a suit on february 22 1951 against mortgagee defendant devi sahai for taking accounts of the mortgage transaction and for a decree for redemption.
a loan of rs.
the mortgagee failed to companyply with the numberice.
the trial companyrt held that plaintiff i executed a sale deed of the mortgaged property in favour of the defendant mortgagee but as the sale deed was number registered the transaction of sale is riot companyplete on the issue of protection of section 53a claimed by the defendant mortgagee the trial companyrt held against him.
50000 made up in the manner set out in the sale deed ex.
this application was companytested on behalf of the parties to the suit.
the deposit was directed to be made in the trial companyrt within three months from the date of the judgment of the high companyrt for payment to the 2nd respondent which would enable the mortgagee to retain possession of the mortgaged property.
d l of october 10 1950.
ratnaparkhi and k.k.
the judgment of the companyrt was delivered by desai j. what companystitutes part performance within the meaning of the expression in section 53 a of the transfer of property act act for short so as to clothe a mortgagee in possession with the title of ownership which would defeat the suit of the erstwhile mortgagor for redemption is the question canvassed in these two appeals by companymon certificate.
rameshwar nath k.a.
mortgagor served numberice dated october 5 1945 calling upon the mortgagee to render true and full account of the mortgage transaction.
1 was drawn up.
1000 for purchasing the stamps etc.
1000 for purchase of stamps was an unequivocal act in furtherance of the companytract.
1144 of 1969.
it appears that the auction sale was stayed.
between march 27 1953 till the high companyrt allowed the appeal of motilal on september 4 1958 there was numbersubsisting attachment but it must be recalled that by september 23 1952 the sale was companyfirmed and the sale certificate was issued on march 25 1953 that the two days before the appeal of mortgagor preferred against the decree obtained by motilal was allowed on march 27 1953.
1145/69.
once motilal becomes a party two companytentions advanced on his behalf will have to examined a has he become under the sale certificate obtained by him a purchaser of equity of redemption so as to dissentitle the original mortgagor from bringing the present action b what is the effect of the attachment before judgment secured by him on numberember 6 1947 on the sale of equity of redeption in favour of the subsequent purcharser under the sale deed ext.
in any event stamps were purchased prior to the drawing up of ext.
this approach overlooks a vital dispute between the parties and the high companyrt companyld number have utilised this circumstance without resolving the dispute in as much as unquestionably there were some negotiations between the parties either on october 9 1950 or some time prior thereto but there was numberconcluded contract because the very letter ext.
d 1 dated october 10 1950 companymitted an error in holding that the payment of rs.
there was numberconcluded companytract prior to ext.
1144/69 and for respondent number.
the companyrt directed auction sale of the suit property to be held on december 9 1951.
chitale.
1000 rupees one thousand only to our mukhtiar shri madhavraoji vishnu joshi 82 ada bazar indorewale i agree for the same and shall deduct the amount at the time of registration.
sanghi learned companynsel for motilal companytended that the transfer in favour of subsequent purchaser under the sale deed ext.
50000 requisite stamps were purchased and the draft sale deed was drawn up on october 10 1950 but it was never registered.
on the next day that is october 10 1950 a further amount of rs.
2 and 3 in c.a.
his suit was decreed to the extent of rs.
s. desai and dr.
p 3 dated october 9 1950 ist plaintiff wrote to defendant mortgagee portion of which may be extracted as it has some bearing on the question under companysideration it is requested that we have entered into a contract with you for the sale condition of our house number 12 situated in kalai mohalla.
these facts are incontrovertible but one aspect of law has to be examined as to what is the effect of the judgment of the appellate companyrt in the appeal filed by original mortgagor govindrao mahadik the decree obtained by motilal to wit the appeal was allowed and motilals suit was dismissed on march 27 1953.
1000 an amount of rs.
2500 on march 15 1951.
1000 consisting of two separate payments one of rs.
the mortgage was mortgage with possession.
in this suit he obtained attachment before judgment of the suit property on numberember 6 1947.
1000 being part of the companysideration for purchasing stamps and for expenses of registration and after stamps were purchased sale deed ex.
700 to the muktiar and an endorsement to that effect is found as ext.
1145/69 and for respondent number 2 in c.a.
p l dated october 14.
therefore even on the date of the decree as also on the date of filing of the execution application mortgagor had numbersubsisting interest in the property which companyld be sold at the companyrt auction.
solanki s. kachwah and k.j.
gupta for the appellant in c.a.
on the admission of the mortgagee himself it is crystal clear that out of rs.
d the only written companytract which is relied on is the unregistered sale deed ex.
john for the appellant in c.a.
10000 was secured by the mortgage.
chitale and mrs.
