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1939 (4) TMI 21 - HC - Indian Laws

Issues Involved:
1. Mutual mistake in the description of mortgaged property.
2. Res judicata.
3. Merger of the mortgage in the preliminary decree.
4. Estoppel.
5. Laches.

Detailed Analysis:

Mutual Mistake in the Description of Mortgaged Property
The plaintiff, as the transferee of a deed of mortgage dated October 24, 1918, alleged that due to a mutual mistake, the mortgaged premises were wrongly described. The plaintiff asserted that the parties intended to mortgage the property bearing Ward number 3912(2) and Street number 99A, but it was mistakenly described as Ward number 3912(3) and Street number 99B. The plaintiff sought rectification of the mortgage and related deeds to reflect the correct Ward and Street numbers. The court found that the intrinsic evidence in the mortgage deed (Exhibit D) itself led to an "irresistible inference" that the intention was to mortgage plot B (Ward number 3912/2 and Street number 99A), and the wrong numbers were inserted by mutual mistake.

Res Judicata
The defense argued that the claim was barred by res judicata due to the previous suit (No. 1742 of 1932) and the proceedings on the notice of motion in that suit. The court held that several defendants in the present suit were not parties to the earlier suit, and therefore, the matter was not res judicata. The court also noted that the principle of res judicata did not apply as the earlier suit involved different parties and issues.

Merger of the Mortgage in the Preliminary Decree
The defense contended that the mortgage was merged in the preliminary decree of the earlier suit, precluding the plaintiff from seeking rectification. The court rejected this argument, citing Order XXXIV, Rule 5 of the Civil Procedure Code, which allows a mortgagor to redeem until confirmation of the sale, indicating that there is no merger of the security in the decree.

Estoppel
The defense argued that the plaintiff was estopped from claiming to be the mortgagee of the property with the correct Ward and Street numbers due to the proceedings in the earlier suit. The court found no substance in this argument, stating that the plaintiff's claim for rectification was not barred by estoppel.

Laches
The defense also raised the issue of laches, arguing that the plaintiff's delay in seeking rectification barred the relief claimed. The court held that mere laches is not a bar if the rights of third parties have not intervened, which was not the case here. The court accepted the plaintiff's explanation for the delay, noting that the plaintiff discovered the mistake only after the preliminary decree in the earlier suit.

Conclusion
The court decreed in favor of the plaintiff, ordering the rectification of the mortgage deed to reflect the correct Ward and Street numbers. The preliminary mortgage decree in the earlier suit (No. 1742 of 1932) was set aside as between the plaintiff and defendants Nos. 1 to 3 and defendant No. 5 in that suit. The court also passed the usual preliminary mortgage decree as between the plaintiff and defendants Nos. 1 to 6 upon the rectified mortgage deed, giving six months for redemption.

Costs
The court ordered that the costs of the suit, as if it had been an uncontested long cause, be added to the mortgage security as between the plaintiff and defendants Nos. 1 to 3. Defendants Nos. 4A and 5 and 6 were ordered to pay the increased costs due to the issues they raised from the date of their respective written statements. No costs were awarded against defendants Nos. 4, 7 to 12, or 13.

 

 

 

 

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