GURUCHARAN KOERI AND ORS. versus BIBI SHAMSUNISSA

Citation: [1993] SUPP. 1 S.C.R. 416 · Decided: 27-07-1993 · Supreme Court of India · Bench: K. JAYACHANDRA REDDY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
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D 
GURUCHARAN KOERI AND ORS. 
I', 
BIBI SHAMSUNISSA 
JULY 27, 1993 
[K. JAYACHANDRA REDDY AND N.P. SINGH, JJ.] 
Code of Civil Procedure, 1908 : S.°100-Suit for redemption-Whether 
is for entire property inortgaged or for a part thereof-Held, is a mixed 
question of fact and law. 
The plaintiff-appellants filed a suit for redemption ytfich was dis-
missed by the trial court, but was decreed by the first appellate court. The 
defendant fil~d a second appeal before the High Court and successfully 
contended that the suit was not maintainable as it had been filed only in 
respect of a part of the land mortgage. 
On appeal by special leave to this Court, the plaintiff-appellants 
contended that the plea of non-maintainability of the suit raised by the 
defendant pertained to a question of fact which could not have been raised 
for the first time in the second appeal before the High Court. 
E 
Allowing the appeal, this Court 
HELD : The question • whether the suit for redemption was in 
respect of all the plots which had been mortgaged or only in respect of a 
part thereof· raised by the defendant is a mixed question of fact and law. 
F The objection had not been taken at any earlier stage aud the courts below 
did not go into this question. The case is remitted back to the Court for 
disposal in accordance with law. [417-F-H; 418-A] 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3403 of 
1993. 
From the Judgment and order dated 8.5.1992 of the Patna High 
Court in Appellate Decree No. 149 of 1983. 
S.B. Sanyal and Vishnu Mathur (N.P.) for the Appellants. 
H 
Uday Sinha and A. Sharan (N.P.) for the Respondent. 
416 
GURUCHARAN v. BIBI SHAMSUNJSSA [N.P. SINGH, J.] 
417 
The Judgment of the Court was delivered by 
A 
N.P SINGH, J. Leave granted. 
The plaintiffs are the appellants before this Court. They filed a suit 
for redemption, of mortgage bond dated 28th July, 1916 executed by Gopal 
Mahto, the ancestor of the appellants in favour of one Akram Hussain. The B 
suit had to be instituted when the defendant refused to accept the mortgage 
money, which was tendered to her. The Trial Court dismissed the said suit. 
On Appeal being filed by the appellants, the suit was decreed by the 
learned Subordinate judge and the respondent was directed to withdraw 
the money deposited in her favour had to deliver vacant possession of the C 
land to the appellants within the time fixed by the court, failing which the 
appellants were to take possession of the disputed land through the process 
of the Court. On second appeal being filed on behalf of the defendant/ 
respondent, the High Court dismissed the suit on the ground that as the 
suit for redemption had been filed only in respect of one of the five plots, 
which had been mortgaged in favour of the predecessor in interest of the D 
defendant, the said suit was not maintainable. 
Before the High Court, a stand was taken on behalf of the respon-
dent that by the aforesaid mortgage deed, plol Nr,s. 557, 558, 559, 564 and 
565, having a total area of 74 decimals, were mortgaged, but the appellants 
had sought redemption in respect of two plots i.e. plot Nos. 565 and 551; 
out the two plots, plot No. 551 was never the subject matter of mortgage 
and as such the suit for redemption was not maintainable. The appellants 
have produced a copy of the plaint along with the schedule thereof and it 
was urged on their behalf that the suit has been dismissed by the High 
Court under misconception about the factual position in respect of the 
subject matter of dispute. A grievance was also made that the question 
whether 'the suit for redemption is in respect of all the plots which had 
been mortgaged or only in respect of part thereof,. was a question of fact 
and as such any such plea regarding non-maintainability of the suit, should 
E 
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not have been taken on behalf of the respondent for the first time before G 
the High Court. 
The learned counsel appearing for the respondent, could not point 
out from the records of the appeal that this objection had been taken on 
behalf of the respondent at any earlier stage and the courts below have 
gone into this question. It cannot be disputed that it is a mixed question H 
418 
SUPREME COURT REPORTS (1993] SUPP. 1 S.C.R. 
~A of fact and law. In such a situation, we are left with no option but to set 
aside the judgment of the High Court and to remit the case back to the 
High Court for disposal in accordance with law. The appeal is acc

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