BAKAULLA KHAN AND ANR. Vs. INDRAMONI PRUSTY

JUDGEMENT

(1.) DEFENDANTS are the Appellants and the appeal has been preferred against a reversing judgment. Plaintiff Respondent's case is that Kuanr Khan, deceased father of Defendants borrowed Rs. 2,000/ - from him on 16 -1 -1952 and executed the suit mortgage bond. Kuanr Khan died before repaying the loan and the Defendants have succeeded to his properties. Hence the suit was filed to recover the principal and interest due under the mortgage bond. It is further alleged by the Plaintiff that at the time of advancing the suit loan to Kuanr Khan, he had no money -lending business, though subsequently he got himself registered as a moneylender under the Orissa Money Lenders Act.

(2.) DEFENDANT -Appellants, besides challenging the valid execution and attestation of the mortgage bond, resisted the claim on three grounds. Firstly, it is alleged by them that though a mortgage bond for Rs. 2,000/ - was taken, actually Rs. 1,500/ - had been advanced under the document. Secondly, it is alleged by them that the mortgage dues have been fully satisfied by payment of Rs. 700/ - in cash in two instalments of Rs. 500/ - on 31 -7 -1953; Rs. 200/ - on 2 -10 -1954 and the balance was satisfied by giving ornaments worth Rs. 1,000/ - described in the schedule. Lastly, it is alleged that the suit is not maintain able by the Plaintiffs as it is bit by Section 8 of the Orissa Money Lenders Act.

(3.) THE three points that arise for decision in this appeal are as follows: