DEOKI NANDAN Vs. MAKHAN LAL

JUDGEMENT

(1.) This is a plaintiff's second appeal against the decree of the learned District Judge, Agra dismissing his suit for redemption of a mortgage. This mortgage was made in the year 1874 by one Tulfi in favour of a man called Kan-hayia Ram. The amount borrowed under the mortgage was Rs. 99/- repayable within 5 years together with simple interest at Rs. 1/4/- per mensem. The mortgage contained a condition that the mortgagee would be entitled to take possession of the land in the event of default in payment of any instalments of one year's interest. It appears that such a default did take place with the result that Kanhayia Ram filed a suit for possession which was decreed and possession delivered to him. After this, the mortgage became usufructuary. The plaintiff appellant Farasram is the succes-sor-in-interest of the mortgagor Tulfi and the defendant respondents of the mortgagee Kanhayia Ram. It is not necessary to relate how they acquired their respective interests. In 1939 the appellant Panisram filed his suit for redemption of the mortgage. The defendants contested it on several grounds and pleaded inter alia that it was time-barred. He even denied the execution of the mortgage. Tho trial court framed an issue on the question of limitation and held that the suit was within time. He further held that the plaintiff Parasram is a representative of the original mortgagor and therefore entitled to redeem the mortgage. He held the defendants to be the mortagees of the land in dispute. He decreed the plaintiff's suit for redemption, but held that the contractual rate of interest was excessive and should be reduced. Accordingly, he changed it from Rs. 1/4/- per mensem simple interest to 12 per cenf compound interest with six monthly rests for the period between 1878 and 1929, 7 per cent compound interest with yearly rests from 1930 to 1935, 6 per cent compound interest from 1935 to 1941. But, instead of being reduced as a result of this change, the total amount of interest was increased from Rs. 900/- to the huge total of Rs. 75,116/7/-. Obviously the learned Judge did not care to verify by actual calculation the results of his changing simple interest into compound. It he had, he would have discovered that instead of reducing the total amount of interest he had unwillingly increased it to a fantastic amount.

(2.) The defendants did not appeal against the decree. But the plaintiff was dissatisfied with the finding of the trial court that he was entitled to redeem an area of 5 bighas 17 biswas only whereas his suit was for 17 bighas 5 biswas. He also felt aggrieved with the learned Judge's directions changing the rate of interest from simple to compound which had the effect of swelling the total amount to the enormous total of Rs. 75,116/7/3. He filed an appeal against these two parts of the decree and prayed that the directions of the trial court regarding the amount of interest be replaced by proper directions for taking accounts.'

(3.) Seven years after the filing of the appeal, the defendants filed a cross-objection. The learned District Judge condoned the delay and admitted it. As his decision to condone the delay has been challenged in this appeal, it is necessary to relate in some detail the chronology of events in the appellate court. Parasram's appeal was filed or 30-1-1941. The office reported a deficiency ir court-fee of Rs. 6/12/- which was made good On 22-2-1941 the appeal was registered, and or 21-3-1941 it was admitted after a preliminary hear-ing under Order 41, Rule 11, C. P. C. However, on 8th April 1941 the office agair raised the question of court-fee and on 31-5-1941 the learned District Judge passed an order directing the plaintiff to pay court-fee ad valorem within three months. Meanwhile, on 20-5-1941 a memorandum of appearance was filed on behalf of Gulab Rai and others by Mr. R. C, Gupta who had conducted the case for the defendants in the trial court. It stated that he was appearing "for pleading only". Between 1941 and 1946 no further progress was made in the appeal as the plaintiff had come to this Court in appeal against the order of the District Judge directing him to pay court-fee ad valorem. The appeal was dismissed for default and a subsequent application for restoration was also rejected on 16-2-1945. On the return of the record, the plaintiff appellant paid, on 11-4-1946, Rs. 7/8/-towards the deficiency in court-fee and on 27-4-1046 the court accepted this amount by an order stating that the appeal was sufficiently stamped. It is difficult to reconcile this order with the previous order on 31-5-1941, but Mr. B. L. Chaturvedi, who connected the case in the lower courts stated that the District Judge was persuaded to revise his pre-vious opinion and take the view that there was no deficiency in court-fee after payment of Rs. 7/8/-. On 4-8-1946 the plaintiff appellant deposited the process fee and notice was issued to the defendant respondents fixing 29-5-1946 as the date of the final bearing of the appeal. On 12-5-1946 notice was served on the respondents by affixation which was subsequently held by the court to be sufficient. On 27th May another memorandum of appearance was filed by Mr. R. C. Gupta, Advocate on behalf of the defendant Jwala Prasad. This too stated that he was appearing "for pleading only". On 9-7-1946 the appeal was called up, when Mr. R. C. Gupta appeared on behalf of the defendants Jwala Prasad and Gulab Rai and the other defendants were noted as absent. The court, in the presence of counsel for the parties, fixed 25-7-1946 for final hearing of the appeal but the appeal could not be heard on that day because an application for adjournment was made on 9-7-1946 on behalf of the defendant Jwala Prasad. Eventually, the final hearing commenced on 10-10-1946 when counsel for the defendant respondents again raised a preliminary objection about the deficiency of The learned Judge upheld the preliminary objection and called upon the plaintiff appellant to pay, within six months, court-fee ad valorem upon the sum of money held to be payable by the trial court as a condition of redemption. It may be noted at this stage that the appellate court passed different orders on different dates on the question of court-fee. On 22-2-1941 Mr. S. P. Chandira-mani held that the deficiency had been made good and directed the appeal to be registered. On 31-5-1941 he directed the plaintiff, to pay court-fee ad valorem. On 11-4-1946. when the plaintilf paid a further fee of Rs. 7/8/-, the court (Mr. Padam Nabhan) held that the appeal was sufficiently stamped. Finally on 10-10-1946 he directed the plaintiff to pay court-fee ad valorem on the amount held by the trial court to be payable on redemption. The plaintiff took time for making good the deficiency which amounted to nearly Rs. 2600/-. The final hearing was also delayed by the death of the original plaintiff Parasram and the substitution of his son Deoki Nandan (the present appellant) in his place. Finally, the deficiency was made good on 20-8-1947 and the appeal was ready for hearing once again. On 22-12-1947 the court fixed 9th February 1948 for the final hearing and counsel for the parties were informed. This date was, however, adjourned to 1-4-1948 at the instance of the plaintiff appellant.