KONCHADA PURUSOTTAM AND ORS. Vs. GOBINDA CHANDRA MOHAPATRA

JUDGEMENT

(1.) THIS second appeal is by the Defendants -mortgagees against the appellate judgment of the Subordinate Judge of Berhampur reversing the judgment of the Munsif of Berhampur and decreeing the mortgagor's (the Plaintiff's) suit for recovery of possession of the mortgaged property under Section 17 of the Orissa Money -lenders Act and for other consequential reliefs.

(2.) THE mortgage bond (ext. A) is dated 18 -7 -1931. The principal was noted as Rs. 1,500/ - interest being payable at the rate of eight annas per month per hundred. The lands described in the schedule attached to the deed were mortgaged by way of security for the loan and it was stipulated that all profits from the said lands shall after paying the Government revenue, be appropriated by the mortgagees in lieu of interest on the loan. Paras 4 and 5 of the deed on the construction of which this litigation rests may be translated as follows:

(3.) HENCE , the main question for decision is whether on a true construction of the said document it could be reasonably held that there was a personal covenant by the mortgagor to pay the mortgage money in addition to the hypothecation of the property by way of security for the loan and delivery of possession of the same to the mortgagees. It was urged that the fixing of a period of five years for the mortgage and the recital in para 4 of the deed by which the mortgagor undertook to pay the mortgage money on the 18th of July, 1936, clearly indicated a personal covenant to pay the money. On behalf of the Respondent, however, Mr. Pal relying on Luchmeswar Singh v. Dookh Mohan, I.T.R. 24 Cal 678 and several subsequent decisions based on the same urged that there was no agreement to repay the principal money and that the said recital was merely, a proviso for redemption, fixing the minimum time within which the mortgagor could redeem. The Counsel for both sides cited innumerable decisions where on a construction of a recital in a mortgage deed, similar in terms to that found in the present case, various High Courts have taken divergent views. In the well -known case Kalka Singh v. Paras Ram, I.L.R. 2 Cal 434 (P.C.), Their Lordships of the Privy Council pointed out...although an unqualified admission of a debt no doubt implies a promise to pay it, Their Lordships are not prepared to hold that is necessarily so where there is an express promise to pay in a particular manner. It must depend on the construction of the instrument in each case.... The same principle was slightly elaborated by the Privy Council in another decision reported in Narayan Singh v. Adhindra Nath Mukherjee, I.L.R. 44.Cal 388 (P.C.) as follows: