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IN THE HIGH COURT OF KARNATAKA BENGALURU

DATED THIS THE 15^th DAY OF SEPTEMBER, 2021

BEFORE

THE HON’BLE MS. JUSTICE JYOTI MULIMANI

REGULAR FIRST APPEAL NO.63 OF 2015 (MON)

BETWEEN:

GEORGE WILLIAM D' SOUZA,

AGED ABOUT 58 YEARS,

S/O LATE JOHN PETER D' SOUZA,

R/AT D.NO.1295, 11^TH 'A' MAIN,

1^ST STAGE, VIJAYANAGAR LAYOUT,

MYSORE - 570 017.

… APPELLANT

(BY SRI KRISHNAMURTHY G. HASYAGAR, ADVOCATE)

AND:

1.

RAMACHANDRA,

AGED ABOUT 54 YEARS,

S/O CHANNARAYAPPA,

DOOR NO.4616, 7^TH CROSS,

VIJAYANAGARA, 2^ND STAGE,

MYSORE - 570 017.

2.

S.DEVARAJ,

AGED ABOUT 50 YEARS,

S/O LATE SIDDEGOWDA,

R/AT DOOR NO.4616, 7^TH CROSS,

VIJAYANAGARA, 2^ND STAGE,

MYSORE - 570 017.

… RESPONDENTS

(BY SRI.M.V.HIREMATH, ADVOCATE FOR R2;

VIDE ORDER DATED 03.10.2016 SERVICE OF NOTICE

TO R1 IS HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CIVIL

PROCEDURE CODE, 1908.

THIS RFA HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT

THIS DAY, THIS COURT DELIVERED THE FOLLOWING:

JUDGMENT

Sri.Krishnamurthy G.Hasyagar, learned counsel for

appellant has appeared through video conferencing and

Sri.M.V.Hiremath, learned counsel for respondent-2 has

appeared in-person.

2.

This is an appeal from the Court of Principal

Senior Civil Judge, Mysore.

3.

For the sake of convenience, the parties are

referred to as per their rankings before the trial Court.

4.

The short facts are these: -

Plaintiff filed the suit against the defendant under

section 26 read with Order 34 Rule 4 of CPC for a

declaration directing the defendant to pay Rs.11,10,000/-

(Rupees Eleven Lakhs Ten Thousand only) along with an

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interest of 21% per annum and also cost along with other

incidental relief to the plaintiff as claimed in the suit, while

stipulating the date and in case, defendant fails to pay,

subject the plaint 'A' schedule property to the process of

the sale of the Mortgage Security and attach plaint - 'B'

schedule property to the process of realization of mortgage

money and thereby, subject plaint -'B' schedule property

to the process of sale price to pay the decree amount to

the plaintiff, while enabling the defendant to claim the

residue.

It is pleaded that the first defendant borrowed a sum

of Rs.7,50,000/- (Rupees Seven Lakhs Fifty Thousand

only) through five cheques and executed the Registered

deed of Memorandum of Mortgage by deposit of title deeds

on 30.07.2004 as security for the repayment of the

mortgage debt.

It is stated that the first defendant handed over the

original documents mentioned in the plaint 'A' schedule,

pertaining to plaint 'B' schedule property were handed over

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to the custody of the plaintiff, as security towards due

discharge of the above said Mortgage Debt. The duration

and conditions in respect of repayment of the Mortgage

Debt was stipulated in the Mortgage Deed.

On 31.07.2004, the first defendant executed an

agreement and agreed to repay a sum of Rs.30,000/-

(Rupees Thirty Thousand only) per month till the

mortgage loan amount of Rs.7,50,000/- (Rupees Seven

Lakhs Fifty Thousand only) is discharged. The first

defendant did not act as per the undertaking. Hence, the

plaintiff issued a reminder notice on 15.02.2006 calling

upon the first defendant to pay the amount. The notice

was served on the first defendant and he paid a sum of

Rs.1,00,000/-(Rupees

One

Lakh

only)

by

cash

on

30.06.2006 and a sum of Rs.3,00,000/- (Rupees Three

Lakhs only) by three demand drafts dated 15.4.2006,

04.05.2006 and 12.08.2006 for Rs.1,00,000/- (Rupees

One Lakh only) each.

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It is said that the amount so paid were adjusted for

the payments that were due till end of July 2006. As the

first defendant failed to make subsequent payments,

plaintiff got issued a legal notice on 10.10.2006 calling

upon the first defendant to r