IMPORTANT POINT
Redemption of mortgage – Prayer for partition, while seeking prayer for redemption of mortgage in respect of portion of suit property, is maintainable.

JUDGMENT

By the Court —Both these first appeals have been filed under Section 96 CPC, assailing judgment and decree dated 10.10.1990 passed in Civil Suit No.91/1980 (92/1979) passed by the Court of Additional District Judge No.5, Jaipur City, Jaipur whereby and whereunder civil suit for redemption of mortgaged property and in alternative, for partition and redemption of half of the mortgaged property as also for delivery of possession, filed by plaintiffs has been decreed and a preliminary decree has been passed against defendants No.1 and 2 to the effect that on making payment of half of the mortgage money of Rs.19,999/- and half of the amount incurred in improvement/repairing of the mortgaged property i.e. 19,722/- along with interest thereupon, plaintiffs will be entitled for possession of the half portion of the mortgaged property after partition of same and further, to commence the partition, the Commissioner has been ordered to be appointed.

2. Plaintiffs being legal representatives of one of the mortgagor have challenged the impugned judgment dated 10.10.1990 by way of filing Civil First Appeal No.47/1991 claiming that decree for redemption of mortgage should be passed in respect of whole of the mortgaged property, whereas on the contrary, defendants No.1 and 2, who are mortgagees, have challenged the impugned judgment dated 10.10.1990 by way of Civil First Appeal No.20/1991 basically on the ground that though they have admitted the execution of mortgage deed by them and their status as mortgagees in the suit property, nevertheless they have resisted a decree for redemption of mortgage even in respect of half portion of the mortgaged property, alleging, inter alia, that firstly the full amount as incurred by them in improvement/repairing of the mortgaged property i.e. Rs.32,485/-, has not been ordered to be refunded and instead of only an amount of Rs.19,722/- has been ordered to be refunded. Secondly, defendants No.1 and 2 acquired right absolutely over the whole of mortgaged property, therefore, the suit for redemption of mortgage has wrongly been decreed.

3. Both first appeals are tagged and heard together and would stand decide by this common judgment.

4. Before proceeding to decide both first appeals on merits, at the outset it may be noticed that learned counsel for appellants-plaintiffs, as per instruction of appellants-plaintiffs stated at bar that in case defendants No.1 and 2 are agreeable to abide by the impugned judgment and decree dated 10.10.1990 and to not press their first appeal No.20/1991 thereagainst, plaintiffs are agreeable to not press their first appeal No.47/1991 on merits and would be satisfied with the impugned judgment and decree passed in respect of half portion of the mortgaged property and simultaneously to ensure the delivery of possession of half portion of the mortgaged property, preliminary decree for partition by metes and bounds to decide the suit properly in equal half and half share, has also been passed. In response to such proposal from the side of appellants-plaintiffs, learned counsel appearing for appellants-defendants No.1 and 2 (now their legal representatives) stated at bar, on instructions of their clients that they want to press their first appeal No.20/1991 on merits as their clients are not agreeable for partition of the mortgaged property and to deliver half of portion of mortgaged property to plaintiffs, in compliance of the impugned decree for redemption dated 10.10.1990 passed in favour of plaintiffs, therefore, this Court has no other option except to proceed further and to consider and decide both first appeals on merits.

5. Heard counsel for both parties and perused the impugned judgment as also entire record thoroughly.

6. It is necessary to notice factual aspect of appeals as culled out from the record and in brief, it is a case where the dispute is in respect of a Haveli having three storied building situated in Thakur Pachewar Ka Rasta at Jaipur. This Haveli w