BRAHMANANDA PANDA Vs. KANDURI CHARAN DAS

JUDGEMENT

(1.) DEFENDANTS 1 and 2 who are brothers filed this appeal against the judgment and decree of Shri B. S. Patnaik, Subordinate Judge of Cuttack, in a suit for recovery of money due on a mortgage bond. Respondent No. 1 is the plaintiff. Respondents 2, 3 and 4 are the sons of defendant No. 1, respondents 3 and 4 being minors. Respondent No. 5 is Sushila Dibya, widow of defendant No. 1. Appellant No. 1defendant no. 1 having died during the pendency of the appeal, respondents 2, 3, 4 and 5 are his legal representatives.

(2.) THE plaintiffs case is that the defendants formed a joint family of which defendants 1 and 2 are the managing members; that defendants 1 and 2 incurred a loan of Rs. 5999/- by registered mortgage bond dated 6-2-37 in order to pay off antecedent debts stipulating to repay it within one year with interest at 9 per cent per annum; and that defendants 1 and 2 not having repaid the loan except a sum of Rs. 400/- on 1-2-44, the suit is filed by the plaintiff for recovery of a sum of Rs. 11,598/- together with future interest within a time to be fixed by the Court failing which the mortgaged properties of the defendants should be sold for realisation of the decretal dues.

(3.) IT may be stated here that along with the plaint the original mortgage bond was not filed, but curiously the plaintiff did not allege in the plaint that the original was lost and that therefore be suit was filed on a registration copy of the said mortgage bond. Along with the plaint he filed an application to keep the document filed in a sealed cover which was done. This document put in the sealed cover ultimately turned out to be a registration copy of he mortgage bond. After notice to the defendants, the defendants filed an application to inspect this document and defendants 1 and 2 filed a written statement after the said inspection of the document kept in the sealed cover.