Ajay Mohan Goel, J (oral) By way of this appeal, the appellants have challenged the judgment and decree dated 2.3.2002 passed by the court of learned Additional District Judge, Mandi, in Civil Appeal No.16/1996, vide which learned appellate court allowed the appeal filed by the present respondents and set aside the judgment and decree dated 16.12.1995 passed by the learned trial court in Civil Suit No.65/1989 in favour of plaintiffs on the sole ground that the mortgage money was not deposited by the plaintiffs within the period so granted by the learned trial court. 2. Brief facts necessary for the adjudication of the present case are that the appellants (hereinafter referred to as the “plaintiffs”) filed a suit for possession by way of redemption on the ground that the suit land comprised in Khewat Khatauni No.103 min/190, Khasra Nos. 1039, 1044, Kita 2, measuring 0-10-01 hectares was mortgaged by the father of plaintiffs, Sh. Narainoo to the predecessor-in-interest of defendants No. 1 and 2, Sh. Sant Ram on 25.3.1964. As per the plaintiffs, one Sh. Krishan Dayal, predecessorin- interest of defendants No. 3 to 8 was closely related to Sh. Sant Ram being his brother-in-law. Sh. Sant Ram in connivance with the revenue staff as well as Sh. Krishan Dayal created tenancy, in papers only, in favour of predecessor-in-interest of defendants No. 3 to 8, for which Sh. Sant Ram had no right. Krishan Dayal, predecessor-in-interest of defendants No. 3 to 8, infact never occupied the suit land in his capacity as tenant prior to the mortgage. It was further the case of the plaintiffs that Sh. Sant Ram had executed a Will in favour of defendants No. 1 and 2. The original mortgagor, Sh. Narainoo, father of the plaintiffs, had executed a gift deed in favour of the plaintiffs. As per the plaintiffs, the entry of tenancy in favour of Sh. Krishan Dayal and thereafter in the name of defendants No. 3 to 8 was wrong and illegal as Sh. Sant Ram had no right to create any such tenancy over the mortgaged land. On these basis, the suit was filed and a decree for possession of the suit land by way of redemption was sought against the defendants. 3. Krishan Dayal and thereafter in the name of defendants No. 3 to 8 was wrong and illegal as Sh. Sant Ram had no right to create any such tenancy over the mortgaged land. On these basis, the suit was filed and a decree for possession of the suit land by way of redemption was sought against the defendants. 3. No written statement was filed on behalf of defendants No. 1 and 2, though the suit was resisted by defendants No. 3 to 8 by filing joint written statement, who inter alia took the stand that the suit land was coming in possession of their father, Sh. Krishan Dayal as non-occupancy tenant since 1950, i.e. much prior to the alleged mortgage. As per the said defendants, the suit land was mortgaged by Sh. Narainoo, father of the plaintiffs with Sh. Sant Ram, father of defendants No. 1 and 2, however the suit land was previously in possession of their father, Sh. Krishan Dayal, in his capacity as non-occupancy tenant under Sh. Narainoo and after the death of Sh. Krishan Dayal, his tenancy rights devolved upon defendants No. 3 to 8, who thereafter were in possession of the suit land as non-occupancy tenants. It was further their case that at the time of creation of mortgage in favour of Sh. Sant Ram, the possession of the suit land was not delivered to him and rather, the mortgage with respect to ownership rights was created as possession was with Sh. Krishan Dayal as non-occupancy tenant. Though mutation No.83 regarding conferment of proprietary rights over the suit land was duly entered by Patwari Halqua on 24.3.1976, but the same was rejected by Assistant Collector, II grade, vide his order dated 23.5.1978 on the ground that since the plaintiffs were minor, proprietary rights qua the same could not be granted. 4. Replication was duly filed by the plaintiffs to the written statement filed by defendants No. 3 to 8, in which the plaintiffs reiterated their case. 5. On the basis of the pleadings of the parties, learned trial court framed the following issues:- (i) Whether the suit land was mortgaged by the father of the plaintiffs to deceased Sant Ram, as alleged ? OPP (ii) Whether deceased Sant Ram in connivance with the revenue staff created tenancy only on papers in favour of predecessor-in-interest of defendants No. 3 to 8 if so its effect ? OPP (ii) Whether deceased Sant Ram in connivance with the revenue staff created tenancy only on papers in favour of predecessor-in-interest of defendants No. 3 to 8 if so its effect ? OPP (iii) Whether the plaintiffs are entitled for the relief of possession by way of redemption ? OPP (iv) Whether suit is not maintainable ? OPD (v) Whether suit is barred by limitation ? OPD (vi) Whether suit is not properly valued for the purpose of court fee and jurisdiction, if so what is correct valuation ? OPD (vii) Whether suit is not properly verified if so to what effect ? OPD (viii) Whether suit is bad for mis-joinder and nonjoinder of necessary party ? OPD. (ix) Whether suit is bad of principle of resjudicata and estoppel ? OPD (x) Relief. 6. On the basis of the evidence both documentary as well as ocular led by the respective parties, learned trial court returned the following findings to the issues so framed: Issue No.1 : Yes Issue No.2 : Yes Issue No.3 : Yes Issue No.4 : No Issue No.5 : No Issue No.6 : No Issue No.7 : No Issue No.8 : No Issue No.9 : No Relief : Suit decreed 7. Learned trial court decreed the suit of the plaintiffs in the following terms on 16.12.1995:- “As per my above discussion and reasons therefore the suit of the plaintiff is succeeded and preliminary decree be prepared to the effect that the plaintiffs are entitled for the possession of the suit land from the defendants which is compromised in Khewat khatauni No. 103 min/190 khasra Nos. 1039, 1044 kita 2 land measuring 0-10-01 hect, situated in village Dhatoli, Illaqua Hatli, Sub Tehsil Baldwara, District Mandi, H.P. by way of redemption, subject to their depositing in the court the principal money i.e. Rs. 565/- alongwith an interest @ 6% per annum from 25.3.64 till the date of preliminary decree alongwith an interest @ 6% per annum on the mortgage money from the date of preliminary decree till the depositing of the said amount in the court, within 3 months from the date of judgment”. 8. Feeling aggrieved with the judgment and decree so passed by the learned trial court, defendants therein preferred an appeal. 8. Feeling aggrieved with the judgment and decree so passed by the learned trial court, defendants therein preferred an appeal. In Appeal, learned appellate court while concurring with the findings returned by the learned trial court however set aside the judgment and decree so passed by the learned trial court on the ground that the plaintiffs had failed to deposit the mortgage money in order to redeem the mortgage as was directed by the learned trial court. 9. The judgment and decree so passed by the learned appellate court dated 2.3.2002 has been assailed by way this appeal by the plaintiffs. However, no appeal has been filed against the judgment and decree passed by the learned appellate court by the respondents herein. 10. This appeal was admitted by this Court on the following substantial question of law on 6.11.2003:- “What is the effect of mortgagors not depositing the amount towards redemption of mortgage within the time allowed by the Court?” 11. Mr. Rajesh Mandhotra, learned counsel for the appellants, has submitted that the judgment and decree passed by the learned appellate court is prima facie perverse as while allowing the appeal so filed by the defendants and setting aside the judgment and decree so passed by the learned trial court, learned appellate court erred in not appreciating the fact that the reason as to why the plaintiffs did not deposit the mortgaged money for the purpose of redeeming the mortgage, was that on an application filed under Order 41 Rule 5 CPC along with the appeal, there was an order passed by the learned appellate court staying the operation of judgment and decree so passed by the learned trial court. Mr. Mandhotra argued that it is not as if the plaintiffs did not purposely deposit the mortgage money as ordered by the learned trial court and even today they were ready and willing to deposit the amount. Mr. Mandhotra stated that amount could not be deposited as the operation of the impugned judgment and decree passed by the learned trial court was stayed by the learned appellate court and that too, at the behest of the defendants, who had filed an appeal against the judgment and decree so passed by the learned trial court. Mr. Mandhotra stated that amount could not be deposited as the operation of the impugned judgment and decree passed by the learned trial court was stayed by the learned appellate court and that too, at the behest of the defendants, who had filed an appeal against the judgment and decree so passed by the learned trial court. On these basis, he submitted that the factum of non deposition of mortgaged amount could not have gone against the plaintiffs as has been wrongly construed by the learned appellate court. 12. On the other hand, Mr. R.L. Chaudhary, learned counsel for respondents No. 1 to 6, 9 and 10 has argued that though there was an interim order passed by the learned appellate court, vide which the judgment and decree so passed by the learned trial court was stayed, however there was no embargo for the plaintiffs to have had deposited the mortgage money as ordered by the learned trial court. On these basis, he submitted that there is no perversity with the findings so returned by the learned appellate court and there is no merit in the instant appeal, which deserves dismissal. 13. I have heard learned counsel for the parties at length and have also gone through the judgments passed by the learned courts below as well as the record of the case. 14. In the present case, there are concurrent findings returned by both the learned courts below to the effect that the suit land was infact mortgaged by the father of the plaintiff with Sh. Sant Ram, predecessor in interest of defendants No. 1 and 2, who in connivance with the revenue staff as well as Sh. Krishan Dayal created tenancy, in papers only, in favour of predecessor-in-interest of defendants No. 3 to 8, therefore, the plaintiffs were entitled for relief of possession by way of redemption. The findings so returned by both the learned courts below are not under challenge in this appeal, as I have already stated above no appeal has been filed against the judgment and decree passed by the learned appellate court by the present respondents. 15. Be that as it may, the judgment and decree was passed by the learned trial court on 16.12.1995. 15. Be that as it may, the judgment and decree was passed by the learned trial court on 16.12.1995. As per the judgment and decree passed by the learned trial court, three months’ time was granted to the plaintiffs to deposit the principal amount along with interest from the date of judgment and decree. Admittedly before expiry of period so granted by the learned trial court, the operation of the judgment and decree passed by the learned trial court was stayed by the learned appellate court in an appeal filed by the present respondents on 14.02.1996, on which date, the following order was passed:- “This appeal alongwith application under order 41 rule 5 C.P.C. moved before me as ld. District Judge, Mandi is on leave. Heard. Be put up before ld. District Judge, Mandi on 19-2-1996 and in the meantime, in view of the affidavit of the appellant, operation of the judgment and decree is stayed under order 41 rule 5 C.P.C. till further orders & status quo qua possession be maintained. Be put up before ld. District Judge, Mandi on 19-2-1996.” 16. Therefore, in this view of the matter, learned appellate court has erred in not appreciating the fact that it is not as if there was a wilful disobedience on the part of the plaintiffs by not complying with the judgment and decree passed by the learned trial court, but it was on account of the stay order so passed by the learned appellate court that the plaintiffs were not able to deposit the said amount as the operation of judgment and decree in compliance to which the plaintiffs were to deposit the money stood stayed by the learned appellate court. 17. Now, coming to the substantial question of law framed. In my considered view herein it is not a case that the mortgagors did not deposit the amount towards redemption of mortgage within the time allowed by the learned trial court per se. 17. Now, coming to the substantial question of law framed. In my considered view herein it is not a case that the mortgagors did not deposit the amount towards redemption of mortgage within the time allowed by the learned trial court per se. Here is a case where the mortgagors could not deposit the said amount within the time period so granted by the learned trial court as the operation of the judgment and decree passed by the learned trial court was stayed by the learned appellate court, therefore, there is no question of mortgagors not having deposited the mortgage amount within the time as was allowed by the learned trial court or disobeying the judgment and decree so passed by the learned trial court. The substantial question of law is answered accordingly. 18. In view of my findings returned above, the present appeal is allowed and the judgment and decree dated 2.3.2002 passed by the learned Additional District Judge, Mandi, in Civil Appeal No.16/1996 is set aside and the judgment and decree dated 16.12.1995 passed by the learned trial court in Civil Suit No.65/1989 is restored and upheld. The plaintiffs are further directed to comply with the judgment and decree dated 16.12.1995 on or before 30.6.2017. Pending application(s), if any, also stands disposed of. No order as to costs.