( 1 ) HEARD learned counsel for the appellant. According to the appellant, the plaintiff Vinod Shanker alleged that he mortgaged the property to one Smt. Chander bai on 5. 11. 1963. The mortgage period was 5 years. Plaintiff filed suit for redemption of mortgaged property on 29. 8. 1991. However, that suit was withdrawn by moving application under Order 22 Rule 3 CPC on finding that Smt. Chander Bai was alive and said Chander Bai has not been impleaded as party in the suit. However, the Court passed an order on application of the plaintiff and permitted the plaintiff to withdraw the suit but without mentioning that the permission is with liberty to file fresh suit. The suit was dismissed as withdrawn on 22. 2. 1997.

( 2 ) THE plaintiff filed fresh suit on 28. 4. 1997 for redemption by impleading Smt. Chander Bai also as party. The present appellant/defendant who was in possession of suit property was also impleaded as party as the present appellant claimed that he is in occupation of the property as tenant in the suit property prior to 5. 11. 1963 i. e. from before mortgage was created, therefore, he cannot be evicted from the suit property in any decree not passed under p