TMI Blog2005 (2) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... demption of a mortgage and with a chequered history. One Mst. Toranto had mortgaged the suit property on 26.1.1908 in favour of Kesho Ram for a period of 60 years. This property is said to have been inherited by Smt. Sukh Dei, who on 1st April 1950 executed a sale deed selling her right of redemption in favour of Narvedshwar Mishra (original plaintiff and respondent herein). Sukh Dei had only a limited interest being a Hindu widow not in possession of the property. The plaintiff contended in the suit that the period of 60 years was fixed as the period of mortgage amounted to a clog on the equity of redemption and hence, null and void, and therefore, the plaintiff was entitled to redeem the mortgaged property without waiting for expiry of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranto, the mortgagee became the possessor of the mortgaged property and the mortgage did not remain permissive and the suit for redemption filed by the plaintiff was dismissed inter alia on the ground that the Plaintiff had no right to redeem the property; held that Harbans Kalwas son of Toranto died after Smt. Toranto and Sukh Dei was the wife of Harbans Kalwar who claimed the property of Smt. Toranto after the death of Harbans Kalwar; the conditions of mortgage did not amount to clog on redemption and the suit was premature. Narvadeshwar Mishra heir of the original plaintiff filed Civil Appeal No. 44 of 1956 arising out of suit No. 1070 of 1950. Smt. Dhanpati and Sukhi Lal did not file any appeal against the dismissal of their Suit No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and arrayed as a respondent in the appeal before the lower appellate court. There was failure to bring the legal representatives of deceased Sukh Dei on record. The heirs of Sukh Dei not having been substituted, the suit abated. An appeal carried by the plaintiff against the abatement order was also dismissed by the District Judge for default. An application for restoration was filed in the appeal. An attempt to serve notice issued for restoration of the appeal elicited the report that three of the respondents had died in 1965-66. The Additional Civil Judge, Gorakhpur held that the appeal stood abated against respondents 4 and 6 in the appeal. In appeal the First Additional District Judge took the view that though one of the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it after the period of the mortgage is over. The learned counsel invited our attention to the order of the High Court dated 18.2.1966 in second appeal No.3033/58 and contended that this order is wholly erroneous. Though the said order was not challenged in the year 1966, the appellants were entitled to canvas the correctness of the said order in the present appeal. We shall presently examine these contentions. In Seth Ganga Dhar v. Shankar Lal Ors. (at p.512), following the view taken by the Privy Council in Bakhtawar Begum v. Husaini Khanam , it was held that Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for which the mortgage is created, the right of redemption can only ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and ors. v. Smt. Deorajin Debi anr. , under similar circumstances, took the view that an order of remand was an interlocutory judgment which did not terminate the proceedings and hence could be challenged in an appeal from the final order. This view was again reiterated in KC Bose (supra) wherein it is observed (p. 767) Mr. Sinha appearing for the respondent was unable to cite any authority of this Court taking a contrary view or overriding the decisions referred to above. In this view of the matter we are of the opinion that it is open to the appellant to assail even the first judgment of the High Court and if we hold that this judgment was legally erroneous then all the subsequent proceedings, namely, the order of remand, the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
