MOTILAL LAXMAN Vs. PURSHOTTAM DAMODAR

JUDGEMENT

(1.) THIS revision under Section 115 of the Civil Procedure Code is by the defendants against the order, dated, 20-8-1963, passed by Shri Devendrasingh, Civil Judge class I, Khargone in Civil Suit No. 20-A of 1962, demanding court-fees on Rs. 2201/- on the ground that the defendants were claiming the said amount by way of a counter claim.

(2.) THE first respondent, Purshottam filed a suit for redemption of the mortgage, dated, 38-1-1909 for a consideration of Rs. 1000/- alleging that the period for redemption was fixed at 21 years; and that the plaintiff being successor-in-interest of the original mortgagor, was entitled to redeem the same. The heirs of the original mortgagor had executed gift deeds in favour of the Gaud Malviya Brahmin sakal Panch Khargone on 18-11-1961 and 19-12-1961. The plaintiff, therefore, sued in his capacity as manager of the said institution.

(3.) THE defendants in their defence alleged that they were entitled to Rs. 2000/- as damages on account of a breach of a contract of sale of the mortgaged property, made by Sunderbai and Shankar. In lieu of the same, an amount of Rs. 201/- had been paid as earnest money. Therefore, the mortgagees were entitled to claim the two items on the basis of the agreement of sale executed in the year 1949. As the original agreement was missing, the mortgagees filed an affidavit about the agreement having been executed.