Suit for cancellation of decree
Ramasamy
(Querist) 17 November 2011
This query is : Resolved
Dear Sir,
I have the following doubts:
In a suit for declaration of title and for injunction filed against two defendants.
The first defendant is the original owner of the suit property and he mortgaged the said property to the second defendant and also handed over the possession of the suit property on the very same date of the mortgage.
Thereafter the first defendant had sold away the said mortgaged property to the plaintiff.
Thereafter the plaintiff had filed the above suit for declaration of title and for injunction as against both the defendants.
The first defendant (Vendor) only contested the suit till the date of pronouncement of judgment. Whereas the second defendant (mortgagee) had set exparte right from the beginning till the date of pronouncement of judgment.
Then a judgment was pronounced declaring that the plaintiff was the absolute owner and also granted a permanent injunction restraining both the defendants from causing disturbances to the plaintiff’s peaceful possession and enjoyment of the suit property.
The peculiar facts behind the said judgment are as follows:
(a) till date the second defendant (mortgagee) only holding the possession of the suit property; but without adjudicating who is in possession of the suit property, the trial court simply granted injunction infavour of the plaintiff by presuming that once the plaintiff is entitled for declaration then it follows to presume that he is in possession of the suit property for which the trial court applied one HC judgment;
(b) in fact, the plaintiff without placing any “material documents” for proving his possession (even though the actual possessor (second defendant/mortgagee) is not contested the suit) the simply got such a relief by paving a way for the trial court to presume the possession by applying one HC Judgment; and
(c) after the said judgment the said plaintiff had filed yet another suit for redeeming the mortgage and got a direction to deposit the “mortgage money with interest” that too “within two months” but the said plaintiff had deposited the mortgage money only after the “four months”.
Under these circumstances, whether the second defendant (mortgagee) who is in actual possession of the suit property from the date of the mortgage can file a suit for cancellation of the said lower court decree or any other method of suit for safeguarding his possession.
In fact, the said second defendant is a party to the proceedings, under this circumstances whether he can seek for cancellation of decree since he didn’t participated in the said suit since he was set exparte and his appeal against the said exparte decree was also dismissed as time-barred.
Kindly advise me.
Thanks in advance to the learned experts.
Raj Kumar Makkad
(Expert) 17 November 2011
As his appeal against decree has already been cancelled so only option left with him to file an appeal against order of dismissal of his appeal before HC and he cannot take benefit of late deposit of mortgage money by plaintiff.
Rajeev Kumar
(Expert) 17 November 2011
I agree with mr.makkad
Ramasamy
(Querist) 28 November 2011
Dear Sirs,
I convey my heartiest Thanks to all the learned Experts who have shared your valuable opinions on my query.
