ZAHIRUDDIN MUHOMMED Vs. M SUBBA RAO

JUDGEMENT

(1.) It is the unsuccessful defendant in both the Courts below who has filed this Second Appeal against the decree and judgment dated 28-2-1949 of Sri B. S. Patnaik, Additional Subordinate Judge of Cuttack, confirming the decree and judgment in favour of the plaintiff by Sri T. V. Rao, Second Munsif of Cuttack. The plaintiff, who happens to be a senior member of the Cuttack Bar, brought the suit for recovery of his dues under two registered simple mortgage bonds executed by the defendant on 22-9-1933 and 16-1-1943, the mortgage bonds being for consideration of Rs. 670/- and Rs. 800/- respectively. The properties described in the Schedule KA were mortgaged by the first transaction and those described in Schedule KHA by the second transaction. The plaintiff has claimed. Rs. 1339/- as the due towards the first mortgage bond and Rs. 832/11/3 as the due towards the second transaction as per accounts given in the plaint. The defence which is pertinent for our purpose is only in respect of a small part of the claim. According to the defence, the plaintiff, as his lawyer, recovered a sum of Rs. 175/- from the High Court towards refund of court-fee due to the defendant on 5-2-1934 in First Appeal No. 14 of 1930 and appropriated the same towards mortgage debt as was the understanding between the parties. The plaintiff also in the same capacity, that is, as the defendant's lawyer, withdrew from time to time a sum of Rs. 26872/- towards the pension bill of the defendant from 11-1-1945 to 30-6-1946, the defendant being a retired Government servant. This amount also was to be adjusted towards the mortgage dues. The defendant, therefore, claims a deduction of the above amounts totalling Rs. 44372/- from the dues of the plaintiff. It is to be noted here that these averments, that the plaintiff had withdrawn the court-fee amount of Rs. 175/- on 5-2-34 on behalf of the defendant in F. A. 14730 and further that the plaintiff in the selfsame capacity had also withdrawn a sum of Rs. 26872/- towards the pension bill of the defendant between the dates as noted above, were specifically made in the written statement and the plaintiff, while deposing at the trial, admitted that he had received the said amounts on behalf of the defendant, but had, appropriated the same towards his fees for some other litigations.

(2.) The learned Courts below have concurrently found, giving sufficient reasons, that there was no understanding between the parties that the aforesaid amounts withdrawn by the plaintiff were to be adjusted towards the mortgage dues and in fact the amounts had not been so adjusted. On this finding they have decreed the plaintiff's suit in full observing that the defendant may seek his remedies by other appropriate proceedings.

(3.) In my view, the above finding of the Courts, below that there was no understanding between, the parties that the said amounts withdrawn by the plaintiff would be adjusted towards mortgage dues is not sufficient to dispose of the matter. The principles of appropriation are codified under Ss. 59, 60 and 61, Contract Act. Section 59 runs thus: