KRISHNAMURTHY Vs. KRISHNA RAO

JUDGEMENT

(1.) The plaintiff is the assignee on 6/10/1946 of a mortgage with possession from the second defendant who is the mortgagee from defendant 1 for Rs. 250/- under a registered mortgage deed dated 12/3/1906; he prayed for a decree against the mortgage property and against defendant 1 personally and if the amount was not so realised against defendant 2 personally. The plea of defendant 1 is that defendant, 2 received the entire sum of Rs. 250/- in full settlement of the debt under a receipt dated 3-1-1942. Defendant 2 remained ex parte. The trial Court decreed the suit against both the defendants. On appeal the decree was confirmed as against defendant 2 but was set aside as against the mortgage property and defendant 1. This appeal is preferred against the decision of the appellate court by the plaintiff.

(2.) The main point urged by the learned advocate for the appellant is that the receipt of discharge is inadmissible and even otherwise it cannot extinguish the mortgage as it is unregistered. Ex. II is the receipt which, has been admitted in evidence without any protest or objection and proved in the case. Moreover, there is the additional oral evidence of D. Ws. 1 to 3 about the discharge of the debt and the same has not been impeached in any way. Thus the evidence regarding the discharge of the suit claim is conclusive. The lower appellate Court came to the conclusion relying upon the decision of this Court in '4 Mys. L. J. 83 viz.':

(3.) It is further argued that the facts leading to the decision in '4 Mys. L. J. 83' are inapplicable to the present case as Ex. II is not a mere receipt evidencing discharge of the debt, but operates as an extinguishment of the mortgage security. The appellant relied for that position upon 'BHAN SINGH v. NARINJAN SINGH', AIR 1940 Lah 68 in which the learned Judge has observed that