JUDGMENT - M.L. DUDHAT, J. :---This second appeal is preferred against the judgment and decree dated 9th August, 1994 passed by the VII Additional District Judge, Pune, in Civil Appeal No. 661 of 1993, whereby the lower appellate Court confirmed the judgment and decree dated 21st August, 1993 passed by the Civil Judge, Junior Division, Junnar, in Regular Civil Suit No. 24 of 1962.

2. This is a matter where the plaintiff filed the aforesaid suit for redemption of mortgage in the year 1962 for redeeming the mortgage of an agricultural land for a consideration of Rs. 500/- and for more than 30 years this matter was moving to and fro on technical grounds from trial Courts and lower appellate Courts and it has ultimately landed before this High Court in this second appeal.

3. Few facts which are material from the point of view of disposal of this appeal are as under ;

Appellant in this case is original defendant. Respondent No. 1 (original plaintiff) filed the aforesaid suit before the Civil Judge, Junior Division, Junnar, for redemption of mortgage and also for possession of the suit property. In the said suit, defendant No. 2 was joined as a party. Defendant No. 2 had no objection to redeem the suit property. In the suit, it was contended on behalf of the plaintiff that the suit land was mortgaged for Rs. 500/- and since defendant No. 2 refused to redeem the said mortgage inspite of his readiness and willingness to return the said amount of Rs. 500/-, the plaintiff had filed the aforesaid suit for redemption of the mortgage. It may be kept in mind that the mortgage is a usufractuary mortgage in the sense that after accepting Rs. 500/-, the mortgagor handed over possession of the suit property to the mortgagee and allowed him to enjoy the usufract of the mortgage in lieu of payment of interest. The aforesaid suit was decreed on 23rd March, 1964 ex parte.

4. Against the said ex parte decision, defendant No. 1 filed Misc. Application No. 4 of 1964 for setting aside the ex parte decree. However, the said application for setting aside the ex parte decree was dismissed on 22nd March, 1966. Against the aforesaid decision of dismissal of the Misc. Application No. 4 of 1964, defendant No. 1 preferred Misc. Civil Appeal No. 64 of 1966 and the said appeal was allowed and the ex parte decree passed by the trial Court was set aside subject to the condition that defendant No. 1 was to pay the costs within one month i.e. on or before 2-4-1967. It appears that defendant No. 1 paid the said amount on 3-4-1967 and not on or before 2-4-1967.

5. It appears that in the meantime plaintiff preferred an application before the trial Court for drawing final decree in Regular Civil Suit No. 24 of 1962. While deciding the said application, trial Court referred to the preliminary decree dated 23rd March, 1964 passed by the Civil Judge, Junior Division, Junnar, and in para 4 of his judgment, the trial Court referred to the fact that against the said preliminary decree, defendant No. 1 had preferred an appeal and in the said appeal a conditional order was passed on 2-3-1967 by the lower appellate Court to the effect that on depositing by defendant No. 1 costs on or before 2-4-1967, the judgment and decree passed by the trial Court on 23-3-1964 be set aside. However, in para 5 of the said judgment of the trial Court, it was observed that since defendant No. 1 failed to pay the costs as per the order of the lower appellate Court on 2-4-1967 as per the decision of the lower appellate Court dated 2-3-1967, the preliminary decree dated 23rd March, 1964 passed by the trial Court stood confirmed. In view of this finding, the trial Court passed the final decree. While passing the final decree, the trial Court took into consideration an objection of defendant No. 1 that as per the order dated 2-3-1967, lower appellate Court had granted time to defendant No. 1 to pay the costs on or before 2-4-1967 and since 2-4-1967 happened to be a holiday, defendant No. 1 paid t

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