MOTIRAM Vs. CHIRONJI LAL

JUDGEMENT

(1.) THIS is the plaintiffs' appeal against the dismissal of their claim by Shri G.G. Saksena, Second Additional District Judge, Bilaspur in Civil Suit No. 6 -A of 1955 decided on 22 -7 -1955.

(2.) THE respondent executed a deed of mortgage by conditional sale dated 3 7 -1948 (Ex, P. 1) in favour of the appellants for a consideration of Rs. 16,000, whereby eight annas village share of mouza Pondi, along with 147.64 acres of sir and 22.59 acres of khud kasht lands and a house were mortgaged with stipulations that interest was to be charged at twelve annas per cent per month, and the whole of the amount with interest was repayable within two years, in default of which the mortgagee was to become entitled to foreclose the property. As per recitals of the deed; the debt was incurred in order to redeem the previous mortgage debt of one Jagannath Prasad amounting to Rs. 12.154 in respect of this very property, and to repay some other debts.

(3.) THE appellants filed the present suit on 30 -1 -1953 for foreclosure of the property. They alleged that the order of the Claims Officer was without jurisdiction, because the mortgage debt was an 'excluded debt' and not a 'secured debt'. They, therefore, contended that the rate of interest could not be reduced. The principal amount of Rs. 16,000 with Rs. 6,540 as interest at the rate of twelve annas per cert per month from 3 -7 -1948 to 18 1 -1955 was accordingly claimed to be due, out of which giving credit for the compensation amount of Rs. 1,300/8, a decree for the balance of Rs. 21,239/8 was prayed for. In the alternative it was pleaded that the plaint be treated as an application under Section 28 of the M.P. Abolition of Proprietary Rights Act, In that connection, it was urged that the application should be treated as within time by excluding the period from 23 -4 -51 (date of application) to 14 -11 -1951 (date of order) under Section 34 of the Act.