KEVALDAS KILABHAI Vs. CHHOTABHAI BHAILALBHAI PATEL

JUDGEMENT

(1.) This appeal arises from a suit to recover Rs. 7,500 at the foot of an equitable mortgage made by defendant 1 in favour of the plaintiff. The circumstances giving rise to the suit cut of which the appeal arises are briefly these.

(2.) The plaintiff is a firm under the name and style of Kevaldas Kilabhai, Bombay. Chhota-bhai Bhallalbhai. who is defendant 1, owed monies to the plaintiff firm in the sum of Rs. 12,000 and odd, and for the amount, he executed a promissory note in the plaintiff's favour. It seems that the plaintiff firm filed a suit on the Original Side of this Court, and a decree was passed in plaintiff's favour on 2-91947. In suit No. 1370 of 1947. The plaintiff applied for permission to file a separate suit on the strength of the equitable mortgage under Order 2 Rule 2, and the permission was granted on 15-5-1947. The plaintiff has, accordingly, filed this suit on 11-7-1949, to enforce the equitable mortgage.

(3.) Defendant I filed a written statement, and his principal contention was that no equitable mortgage was made in plaintiff's favour. He contended that documents were not deposited with the plaintiff with the intention of making an equitable mortgage, and his further contention was that the writing, exh. 33, was taken from him as a result of fraud and misrepresentation. Lastly, toe contended that the writing exh. 33 was not legal and was Inadmissible in evidence. Defendants 2 and 3 are subsequent purchasers of the suit house. Defendant 2 did not file a written statement But the contentions of defendant 3 were Similar to those of defendant No. 1.