GYANIRAM Vs. GANGABAI

JUDGEMENT

(1.) THIS is an appeal by one of the two dclendants against the final decree for sale passed by the Civil Judge, Class I, Raipur, in civil suit No. G-A of 1940.

(2.) THE appellant Gyaniram for self and as guardian of his son Babulal, respondent no. 2 executed a simple mortgage bond, dated 2-1-1936, for Rs. 6,999 in favour of Chhotelal, since deceased, father of respondent No. 1, Gangabai. Interest agreed was 11 annas p. c. p. m. with yearly rests. The mortgage debt was said to have been taken for meeting the marriage expenses of Babulal who was then a minor. Chhotelal instituted the suit, out of which this appeal arises against gyaniram and Babulal for recovery of Rs. 9,795-5-0 inclusive of interest. The suit was contested by Babulal who denied execution of the mortgage bond and legal necessity for the debt, A preliminary decree for sale for the full amount, with costs and future interest, was, however, passed against both the defendants on 29-111941, and the amount due, which was found to be Rs. 11,547-12-0 was made payable on or before 29-5-1942 with interest at 6 p. c. p. a. from the date of suit, namely, 15-2-1940, till 29-5-42 and thereafter at 4 p. c. p. a. till realisation.

(3.) BABULAL preferred an appeal (First Appeal No. 28 of 1942) to this Court on 14-31942, against the preliminary decree. Chhotelal died on 22-7-43 and no application was made for substitution of his legal representatives within the period of limitation. On 8-4-1944, however, Babulal filed two applications, one for setting aside the abatement of the appeal and the other for substituting Gangabai in place of Chhotelal. The application for setting aside the abatement of the appeal was dismissed by this Court on 11-10-1944, and although no express order was passed on the other application, it obviously also stood dismissed along with the application for setting aside the abatement.