BANK OF BARODA Vs. MANVA BONE MILLS

JUDGEMENT

(1.) The aforesaid appeals arise from a judgment rendered in Special Civil Suit No. 75 of 1976 by the Civil Judge (Senior Division) Himmatnagar.

(2.) The facts giving rise to the present appeals are that the origin plaintiff namely Bank of Baroda had filed the aforesaid suit against four defendants. Defendant no. 1 was a partnership firm and defendants nos. 2 to 4 were its partners. There is no dispute that original defendant no. 5 who was a partner of defendant no. 1 firm had retired from the said partnership. The plaintiff bank alleging that there was an equitable mortgage between the parties had prayed for a decree for the principal amount of Rs. 4 1 158.51 due as on 30/09/1976 and also for Rs. 30 772 being the amount of interest on the said amount from 1/10/1976 to 22/12/1976 together with Rs. 829.40 being the insurance charges. The total amount on the aforesaid basis came to Rs. 4 32 759.91 and further running interest was claimed at 16 per cent per annum from the date of the suit till payment and costs. It was also prayed that the decretal amount may be ordered to be realised by sale of the suit properties equitably mortgaged as described in the schedule as also from the person and properties of the defendants. It appears that the defendants had raised several contentions in the said suit and had also challenged the alleged equitable mortgage. The learned trial Judge had raised issues as per Exhibit 29 in the said suit. In the judgment under appeal the learned trial Judge was pleased to hold that there was no equitable mortgage in favour of the plaintiff and so the plaintiff was ordered to return the documents stated in Exhibit 80 to the defendants. The suit against defendant no. 5 was dismissed with no order as to costs. The suit however was decreed against defendants nos. 1 to 4 for a sum of Rs. 3 4 775 with simple interest at 7 per cent per annum from the date of the judgment till the date of payment. An order awarding proportionate costs was passed in favour of the plaintiff. Defendants nos. 1 to 4 were also allowed to pay the decretal amount by annual instalments of Rs. 50 0 commencing from 2/05/1982. It was further ordered that if there was default in payment of any two instalments the plaintiff would be entitled to execute the decree for the entire balance at once.

(3.) Feeling aggrieved by the said judgment and order the plaintiff appellant has filed the aforesaid Appeal No. 788 of 1981. Defendants nos. 1 to 4 feeling aggrieved by the aforesaid judgment and decree have filed the aforesaid First Appeal No. 1460 of 1981. Since both the appeals arise from the same judgment they have been heard together and are being disposed of by this common judgment.