The judgment establishes the mandatory requirements for initiating foreclosure proceedings under the Bengal Regulation Act XVII of 1806, emphasizing the need to prove the service of notice of demand and the supply of the copy of the foreclosure petition along with the Parwana/notice to the mortgagor.

Satish Kumar Mittal, J. - This is a plaintiffs appeal. It has been directed against the judgment and decree dated 11.10.1982, whereby the first appellate court, after setting aside the judgment and decree of the trial Court, has dismissed the suit of the plaintiffs for declaring them absolute owners of the suit land measuring 8 Kanals 12 Marlas.

2. Most of the facts of the case leading to the filing of this appeal are undisputed. The suit land was owned by defendant No. 1 Daya Kishan. He mortgaged the land with possession in favour of the plaintiffs vide registered mortgage deed dated 4.7.1972 (Ex.P6) for a consideration of Rs. 9,000/-. The mortgage deed contained a stipulation that the mortgaged amount will not carry any interest and the mortgagee was entitled to enjoy the fruits of the property. It also contained a stipulation that the mortgaged amount shall be paid within one year and the land shall be redeemed accordingly, failing which it will not be permissible for mortgagor to redeem the land and the mortgagee will become owner and will be entitled to take out appropriate proceedings in Court for foreclosure. Undisputedly, the mortgage debt was not discharged by defendant No. 1 within the stipulated period of one year. He rather further mortgaged the suit land in favour of Zile Singh-defendant No. 2.

3. On 20.8.1973, the plaintiffs served a notice of demand upon defendant No. 1 Daya Kishan requiring him to pay the mortgage debt within 15 days from the date of receipt of the notice. When in spite of the alleged notice, the mortgage debt was not paid, the plaintiffs initiated the foreclosure proceedings by filing application dated 20.10.1973 (Ex.P4) in the Court of District Judge, Rohtak, under Section 8 of the Bengal Regulation Act XVII of 1806 (hereinafter referred to as the Bengal Regulation), by pleading that the mortgagee was issued a notice of demand on 20.8.1973 and in spite of the expiry of the prescribed period of 15 days, he has not redeemed the mortgage. It was also pleaded that the aforesaid notice of demand dated 20.8.1973 was refused by the mortgagor. In pursuance of the said application, a Parwana/notice dated 19.3.1978 (Ex.P7) was purported to have been issued by the District Judge, contemplating that the mortgage should tender the mortgage amount together with such interest as may be due thereon within one year from the date of receipt of the said Parwana/notice, failing which the mortgage will foreclose and the conditional sale will become conclusive. It was the case of the plaintiffs that in spite of the said Parwana/notice issued by the District Judge in the foreclosure proceedings under the Bengal Regulation, the defendant mortgagor did not pay the mortgage debt within the stipulated period of one year. Hence, on 28.9.1980, plaintiffs filed the instant suit for declaration that they have become absolute owners of the suit land and the further mortgage of the suit land by defendant No. 1 in favour of defendant No. 2 is illegal and ineffective qua them.

4. The defendants contested the suit. In was denied that any demand notice was served upon defendant No. 1 by the plaintiffs. It was also averred that defendant No. 1 was not duly served with the Parwana/notice of foreclosure proceedings. It was alleged that the foreclosure proceedings were not validly carried out. He was always ready to redeem the mortgage. Subsequently, the plaintiffs amended their plaint to the effect that besides notice dated 20.8.1973, they also served notice of demand upon defendant No. 1 on 5.9.1973. Defendant No. 1 also denied the service of said notice upon him.

5. Initially, the trial Court decreed the suit and held that the notice of demand dated 5.9.1973 was duly served upon defendant No. 1 and in spite of that, he did not discharge the mortgage debt within the time prescribed. It was further held that the order dated 15.4.1978, passed by the District Judge, in the foreclosure proceedings under the Bengal Regulation i