B CHOTEY LAL Vs. FAZLUL RAHMAN KHAN

JUDGEMENT

(1.) THESE are two appeals against two orders of the Civil Judge of Moradataad dated 30-8-1941, and 28-3-1942, by which a decree was amended under Section 8, U. P. Debt Redemption Act (Act 13 of 1940 ).

(2.) THE facts cover a long period and are rather complicated. Abdul Karim and his son Fazlul rahman hold considerable property. On 11-1-1924 the father and the son granted a simple mortgage in favour of the respondent, Rai Bahadur Chotey Lal, for a sum of Rs. 40,000/ -. It was in respect of some house property as well as some zamindari property in three villages viz. Ichaura Kamboo, Dalpatpur and Papri. Between 1927 and 1928 certain payments were made in part atisfaction of the debt. The mortgage was put in suit--suit No. 169 of 1923--and on 28-1-1929, a decree was passed on the basis of this mortgage for a sum of Rs. 59,878-14-6. In satisfaction of this decree as well (?) substantial payments were made with the result that by 21-7-1931, the judgment debtors had discharged the debt to the extent of Rs. 36,014-7-0. On 22-7-1931, a fresh mortgage was executed, practically on the same lines as the earlier mortgage by the father and the son for a sum of Rs. 29,500/- in lieu of the balance due under the decree. Thereafter another suit viz. , suit No. 113 of 1932 was instituted for sale on the basis of a mortgage of 22-7-1931 with the result that a decree for a sum of Rs. 49,531-6-6 was passed on 31-1-1933, against the father and the son. On 29-4-1933, both the judgment-debtors made a payment of a sum of Rs. 14,500/- towards the amount due under the decree. It thus came about that for the original debt of Rs. 40,000/-, the father and the son had by this date paid in all a sum of Rs. 50,514-7-0. Next it appears that the judgment-debtors applied for reduction of interest under the Agriculturists' Relief Act (U. P. Act 27 of 1934) and on 4-1-1936 the mortgage decree was amended and the sum declared to be due under the amended decree was Rs. 34,881-14-6.

(3.) THEREAFTER on 1-10-1936 an application was made by the judgment-debtors under Section 4, encumbered Estates Act (U. P. Act 25 of 1934 ). It is not necessary to go into details, but as the result of these proceedings on 15-2-1939, the Special Judge, 1st Grade, Moradabad, passed a decree in favour of Chotey Lal against Abdul Karim alone for a sum of Rs. 35,8457- as the amount due under the mortgage decree in Suit No. 113 of 1932. The decree of the special Judge went on to apportion the liability between Abdul Karim and Fazlul Rahman and it was provided that the liability of Abdul Karim was to the extent of seven-eighths and the liability of Pazlul rahman was to the extent of one-eighth. On 2-2-1940 Abdul Karim executed a waqf 'alal-aulad' appointing his son, Fazlul Rahman, as the sole 'mutwalli'. The 'waqf was subject to the payment of the debts of the 'waqif.