KIDAR NATH Vs. MANGAT RAI

JUDGEMENT

(1.) On July 20, 1896, Ladhia--grandfather of the respondents--borrowed Rs. 5,000 from Ramji Dass and as security for repayment thereof mortgaged with possession certain agricultural lands and a house. The mortgage amount was to carry interest at the rate of 12 annas per cent, per mensem, and in default of payment of interest due at the end of the year interest was chargeable at 1% per mensem. On May 17, 1897, Ladhia executed in favour of Ramji Dass another mortgage deed on the same properties for Rs. 800. Interest under that mortgage was payable at the rate of 2% per mensem. Ladhia executed a third mortgage deed in favour of Ramji Dass on May 21, 1897, for Rs. 600. It included the properties in the two earlier mortgages and l/12th share in other lands and two houses. The properties mortgaged in favour of Ramji Dass were subject to a previous mortgage in favour of one Shugan Chand. Ramji Dass redeemed that mortgage on payment of Rs. 650.

(2.) Lekh Ram son of Ladhia filed a suit for redemption of the three mortgages. On August 21, 1915, a preliminary mortgage decree was passed in the suit by the Subordinate Judge, Hissar. declaring that Rs. 62,293/11/9 were due on the mortgages. The High Court of Punjab confirmed the decree on November 24, 1919. But no payment was made under that decree, nor was the decree made final.

(3.) Some time in 1951 the representatives of Ladhia applied under the Punjab Restitution of Mortgaged Lands Act, 1938, to the Special Collector and obtained an order for restoration of the agricultural lands. Thereafter the mortgages remained outstanding only on non-agricultural properties. The representatives of Ladhia then instituted an action in the Court of the Senior Subordinate Judge, Hissar, for redemption of the non-agricultural properties, and claimed an account under Section 30 of the Punjab Relief of Indebtedness Act, 1934, and also of Usurious Loans Act, 1918, as amended by the East Punjab Amendment Act 4 of 1948. The representatives of the mortgagee contended, inter alia, that the suit was barred because no payment was made pursuant to the preliminary decree in the earlier suit, that in any event it was declared that the amount due in 1919 under the three mortgages was Rs. 62,293/11/9, and that decision operated as res judicata. and that account under Section 30 of the Punjab Relief of Indebtedness Act should be taken on that footing.