BHAROSILAL Vs. SHILADEVI

JUDGEMENT

(1.) This is plaintiffs appeal whose suit for redemption of mortgage of their house has been decreed by the trial Court. In this appeal they have assailed the direction of the trial Court requiring the plaintiffs to pay to the defendant the sum of Rs. 10,000/- being the sum advanced by the defendant as loan which was secured by the mortgage.

(2.) The short question that arises for decision in this appeal is whether the preliminary decree which is impugned is legal and valid inasmuch as it is not drawn up in accordance with R.7 of O.34 of the Civil P.C. In other words, whether there should have been a direction first for an account being taken of what was due to the defendant at the date of the decree for principal and interest on the mortgage and thereafter a declaration ought to have been made of the amount if any, to be paid to the defendant. Indeed, it is contended in this appeal that the mortgagors/plaintiffs have paid a total amount of Rs. 28,000/- towards principal amount and interest due under the mortgage and as such they were entitled to refund of the amount illegally realised from them by the defendant/ mortgagee and that there could be no direction against them for payment of any amount to the defendant.

(3.) In this connection, it would be appropriate to note that in the suit, as many as eight issues were struck and tried, but the controversy which has to be resolved in this appeal is covered by issue No. 7 and three sub-clauses of issue No. 4. In respect of the three different propositions of facts and law covered by issue No. 4, the conclusion recorded by the trial Court may be summarized as follows :