Judgment Mahendra Bhushan, J.-This is a defendant’s second appeal arising out of a suit filed by respondent Mst. Gulabi under Order2l, Rule 103. CPC

2. The suit property is situated in village Srinagar, District Ajmer and more fully described in Schedule ‘A’, annexed to the plaint. One Codu was the owner of the suit property. Mst, Gulabi is his widow, and one Ramlal is alleged to be his adopted son. Under the registered mortgage deed dated 13-5-195 8 of the suit property, a usufructuary mortgage was created by Mst. Gulabi and Ramlal in favour of one Chandan Mal for a consideration of Rs. 350/-. Thereafter, Mst. Gulabi was inducted as a tenant by the mortgagee Chandanmal in the suit property. Rainlal, the adopted son of Codu, sold the suit property to Champalal defendant-appellant for a consideration of Rs. 2500/-under the registered sale deed in August. 1959. Out of the sale consideration, a sum of Rupees 400/-was left with the appellant for redemption of the property, which, as stated earlier, had been mortgaged with Chandan Mal. Though the case of the appellant was that he had paid to Chandanmal Rs. 400/-but this payment was disputed and, therefore, the appellant filed a suit for redemption against the mortgagee Chandanmal and possession was also claimed. Later on, Mst Gulabi was also arrayed as one of the defendants. That suit for redemption was decreed on September 30, 1963, and in execution of the said decree possession of the suit property was taken from Mst. Gulabi on November 20, 1965. Mst. Gulabi first filed objections under Order 21, Rules 100 and 101, CPC but these objections were dismissed on July 7, 1966. Thereafter, Mst. Gulabi respondent filed a Civil Suit No. 17 1/66 against the appellant and the mortgage Chandanmal under Order 21, Rule 103, CPC on 8-7-66. It was averred in the plaint that there was no decree against her for possession of the suit property, and that a co-mortgagor could not dispossess another mortgagor in execution of decree. That she was in rightful possession of the property in her own right, and that a tenant of the mortgagee cannot be dispossessed in a decree against mortgagee for redemption of mortgage. The suit was contested by the appellant, and the allegations of the plaint were traversed, it was pleaded in the written statement that Mst. Gulabi was a party to the redemption suit instituted by the appellant, and as such the present suit is barred by the principle of res judicata. The learned trial Court on the pleadings of the parties framed the following issues:-1 Whether the plaintiff has been dispossessed from the suit premises illegally due to the reasons given in para 8 of the plaint?

2. What is the value of the property?

3. Whether this Court has got no jurisdiction to entertain the suit?

4. Whether the suit is barred by constructive res judicata?

5. Relief ?

3. Thelearned Munsif , after recording the evidence for the parties, and after hearing arguments, decreed the suit of MST. Gulabi An appeal was preferred by the appellant before the learned District Judge, which was transferred for disposal in accordance with law to the Additional District Judge, Aimer, who, under his judgment and decree dated April 10. 1968, dismissed the appeal.

4. The question, which is a question of law, as to whether in a decree for redemption, the tenant of the mortgage can be evicted, arises for determination in this appeal. Under Order 21, Rule 103, CPC, as it stood prior to the amendment by the Amendment Act, 1976, any party, not being the judgment-debtor, against whom an order had been made under Rules 98, 99 or 101 could institute a suit to establish the right, which he or she claims to the present possession of the property. Subject to the result of such suit, the aforesaid order made was to be conclusive. If a tenant of the mortgage whose tenancy was created during the subsistence of the mortgage can be evicted in execution of a decree for redemption, then it can hardly be said that the person wh

Click Here to Read the rest of this document