PANCHAITI AKHARA MAHA NIRVANI Vs. BINDESHRI PRASAD

JUDGEMENT

(1.) This is an appeal fay the decree-holder against au 'order passed by the execution Court whereby the objections filed by the sons of Bindeshri Prasad, the judgment debtor, were allowed and their three-fourths share in the property attached was released from attachment.

(2.) It appears that a simple mortgage deed was executed on 8-10-1928 by Bindeshri Prasad for Rs. 5,600 payable in five years in favour of the plaintiff, the Panchayati Akhara. The deed carried interest at fourteen annas per cent. per mensem. It also provided that if the mortgagor did not pay the interest within the stipulated period of five yeara, the mortgagee would be entitled to realise the entire amount of the mortgage debt either within the stipulated period or after the stipulated time, A suit for sale on the basis of the mortgage was instituted on 11-10-1932 and there was a clear allegation in the plaint that the mortgagor had not paid the interest as agreed upon. To this suit Bindeshri Prasad as well as bis three minor sons were impleaded as defendants.

(3.) The claim was resisted by Bindeshri Prasad, the mortgagor, on the ground that the suit was premature and further on the ground that the executant had not signed the deed in the presence of the marginal witnesses of the document in suit. In addition to these pleas, the sons further pleaded that the mortgage debt was without legal necessity and that it was tainted with immorality as well.