NAGOO Vs. PT SHIV DULAREY DIXIT

JUDGEMENT

(1.) THIS is a defendants' appeal arising out of a suit for sale on a mortgage. The mortgage in question was executed by one Kalika for himself and as guardian of his two sons, Thakur and kedar and also by his two other sons, Nagu and Bhola who were then major. Nagu and Bhola mortgagors filed a suit under Section 33, U. P. Agriculturists' Relief Act, for a declaration of the amount due to the mortgagee under the mortgage. This was in 1942. The plaintiffs claimed that they were agriculturists and entitled to sue for accounts. The parties came to terms and entered into a compromise which may be quoted here in full:

(2.) THE plaintiffs of that suit paid one instalment according to the terms of the compromise but failed to pay the second instalment in time. We are told that the amount of the second instalment was ultimately deposited in Court one month after the due date, but the creditor did not withdraw the amount. On 13-7-1944 he instituted a fresh suit which has given rise to the present appeal. In this suit he gave credit to the amount of the first instalment which had been paid to him and sued for the balance of the amount that was due under the mortgage. He did not confine himself to the amount of Rs. 700/- as had been settled in the compromise in the previous suit. The suit was for recovery of Rs. 800/ -.

(3.) THE defence of the mortgagors was that, in view of the compromise in the previous suit, even though there was default in making the payment of the second instalment, since one of the instalments had been paid, the default clause in the compromise did not come into operation and the previous suit did not stand dismissed in accordance with that clause, with, the result that the present suit was not maintainable. It was also urged that, in any case, the agreement in the previous suit that the amount of the mortgage was to be taken as Rs. 700/- bound the parties in the present litigation and lastly it was urged that since the defendants were agriculturists, they were entitled to the relief under the agriculturists' Relief Act. It may be mentioned at this stage, that in the plaint of the second suit the plaintiffs made a declaration under Section 4, U. P. Debt Redemption Act, but at the same time stated that this declaration was made by way of precaution in case the court should hold that the defendants were agriculturists.