2006 PLP 965 (YLR)

JAWWAD S. KHAWAJA, J.--This revision petition impugns the concurrent decrees passed by the learned trial Court dated 29-3-2001 and by the learned lower Appellate Court dated 5-11-2002.

2. The facts of this case are relatively straightforward. Moula Bakhsh petitioner-plaintiff and the predecessor-in-interest of the respondents namely, Khadim Hussain, entered into an agreement dated 30-9-1989 (Exh.P.1). This agreement constituted a mortgage by conditional sale. A sum of Rs.25,000 was advanced by the petitioner to Khadim Hussain by way of mortgage money and the mortgage was to be redeemed within a period of two years from the date of the aforesaid agreement. The mortgaged property was land measuring 1 acre.

3. Khadim Hussain, who originally was the defendant in the suit, died and was succeeded by the present respondents. For convenience, Khadim Hussain and the respondents are hereby referred as respondents-defendants.

4. Upon the failure of the respondents-defendants to repay the mortgage money and to redeem the mortgaged property, the petitioner-plaintiff filed a suit on 13-10-1991, out of which the present petition arises. In the said suit the petitioner sought specific performance of the agreement (Exh.P.1). In the alternate, he prayed for a declaration that on account of the failure of the respondents-defendants to redeem the mortgage, he had become owner of the mortgaged property. The third prayer also, in the alternate, claimed return of the sum of Rs.25,000 which had been advanced by the petitioner-plaintiff by way of mortgage money.

5. A written statement was filed by the respondents-defendants, in which no preliminary objections were taken. However, the petitioner filed an application under Order VI, rule 17, C.P.C. seeking amendment of the plaint. This application was allowed vide order dated 18-9-1997. In the amended plaint, the petitioner-plaintiff confirmed his relief to the declaration that he had become full and absolute owner of the property in-dispute as a result of the failure of the respondents to abide by the terms of the agreement Exh.P.1 and to redeem the mortgaged property. A written statement was filed by the respondents-defendants on 18-11-1997, in which, inter alia, a preliminary objection was raised to the effect that there could be no clog on their equity of redemption. In the written statement, the respondents-defendants also offered to pay the sum of Rs.25,000 to the petitioner-plaintiff, although according to them, they had previously also made payment of the said amount. The offer, as stated in para.2 of the amended written statement, was made with the object of avoiding litigation only and without conceding that the mortgage money had not earlier been paid.

6. The two Courts below have dismissed the suit filed by the petitioner-plaintiff in its entirety. Denial of the declaratory relief sought by the petitioner is unexceptionable because the law does not recognize a clog on the equity of redemption. It does however, appear that in view of the contents of para.2 of the amended written statement noted above the petitioner-plaintiff was at least entitled to a decree of Rs.25,000 even though he may not have been entitled to the declaration as prayed for.

7. In the foregoing circumstances I find that Issue No.2 relating to the re-payment of mortgage money of Rs.25,000 was wrongly decided by the learned Courts below. The respondents/mortgagors shall be fully entitled to redemption of the property upon payment of the mortgage sum of Rs.25,

000. This petition is allowed to this limited extent and the impugned decree is modified accordingly. H.B.T./M-1293/L??????????????????????????????????????????????????????????????????????????????? Order accordingly.