1. 1. The appellant one of the judgment debtor in civil original suit No. 165/1958 has preferred this appeal against the order dated 19.2.1988 passed by the Court of Civil Judge, Merta in civil misc. Case No. 10/84 and against the appellate order dated 09.7.90 passed in civil appeal No.3/88 by which the appellate court dismissed the appeal of the defendant appellant.

2. The brief facts of the case are that one Malchand Modi filed suit for possession of the property in dispute on 28.11.1958 with the allegation that the plaintiff mortgaged his property on 4.5.53 for consideration of Rs. 4000/- to Chogalal and Bajranglal. Plaintiff's suit was dismissed by the trial court on 29.1.1962. Against this judgment and decree plaintiff preferred regular first appeal. The appellate court set aside the judgment and decree of the trial court dated 29.01.1962 and remanded the case back to the trial court. The trial again dismissed the plaintiff's suit by judgment and decree dated 23.12.1964. The plaintiff again preferred a regular first appeal against the trial court's judgment and decree dated 23.12.1964 which was allowed by the court of District Judge (CAD 13/1965) by judgment and decree dated 6.7.1967. The appellate court decreed the suit in following terms:

" the result is that the appeal is accepted and the judgment and decree of the learned lower judge are reversed and the plaintiff is held to be adopted son of the deceased Meghraj and so a decree for possession of the two houses described in para No. 3 of the plaint and mortgaged with the defendants by Mst. Ladi is passed in favour of the plaintiff. He will however pay Rs. 4000/- and Rs. 2064/- as interest per annum to the date of the suit i.e. 28.11.1958 to the defendants n all Rs. 6064/- and further the interest at the rate of 6% per annum from the date of suit till the payment on the original principal amount of Rs. 4000/- and on payment of this amount, the plaintiff shall be entitled to recover possession of the two mortgaged houses described in para NO. 3 of the plaint, with the iron safe and the title deeds given to the defendants at the time of mortgage by Smt. Ladi. As regard the costs of this litigation it is made easy through out as both plaintiff and the defendants have not put their respective claims in a straight forward manner and both were found true for one and wrong for other part of their claims. The court had to find out the truth placed in a covered manner by both the parties in their pleadings and reliance could be place on AIR 1954 TRANVANCORE COCHIN 152 - Veli Pillai Padakalingam v. Paramandan Yesudasan . This will also dispose of the cross objection filed by the respondents regarding their claim for the costs".
(emphasis supplied)

3. It appears from the record that one application was submitted by the defendant respondent before the court of District Judge, Merta (in decided appeal NO. 13/1965) which was registered as civil Misc. Case NO. 6/68. This application was filed for correction in the judgment and decree passed by the appellate court because in the judgment and decree, the First Appellate Court did not fix the time for deposit of loan and interest amount by the decree holder for the mortgaged property. It appears that defendant's own contention was that since the appellate court has not fixed the time for payment of mortgage amount and interest, therefore, in case of default of plaintiff, the suit cannot be dismissed. The said contention of the defendant respondent was rejected by the First Appellate Court. The defendant also requested that plaintiff be directed to make payment earlier. This prayer was also declined by the First Appellate Court and the First Appellate Court dismissed the defendant judgment debtor's application vide order dated 8.5.1969 certified copy of which has been placed on record by the present decree holder.

4. It appears that said Malchand, the original plaintiff decree holder through his power of attorney sold the mortgag