DASURAM MIRJMAL FIRM Vs. BRAHMADATTA BAJAJ AND ORS.

JUDGEMENT

(1.) THESE two appeals arise out of the same judgment of the Subordinate Judge, Lower Assam Districts, togging. Dasuram Mirjamal Firm Appellant in First Appeal No. 8/57 was Plaintiff in the suit and Brahmadatta Bajaj Appellant in First Appeal No. 23/57 along with two others was Defendant in the court below. Dasuram Mirjamai firm a registered firm at Gauthati brought a suit on the basis of a simple mortgage dated 10th November 1946 for Rs. 75,000/ - executed by Defendants 1 1c 3. the suit was for the recovery of Rs. 1,13,250/ - inclusive of a sum of Rs. 38,250/ - as interest, by sale of the mortgaged property. The trial court decreed the suit for Rs. 48,732/1/6 as principal, Rs. 2,500/2/6 as inkiest till the execution of the mortgage and Rs. 22,453/ - as Interest on the principal sum of Rs. 46,732/1/5, the total decretal amount thus being Rs. 71,605/4/ -.

(2.) THE contention of the Plaintiff Appellant is that the mortgage in suit is proved to have been duly executed In the mortgage it is set out that Rs. 46,732/1/6 was. the amount due to the Plaintiff from the Defendants on account of the principal and interest of a parole' debt one the interest on the said amount on the date of the mort gage had come to Rs. 2,500/2/6. The balance of Rs. 25,707/12/ - was paid in cash on the date of the execution of the mortgage. Thus the Defendants mortgage the property set out in the plaint for consideration. the mortgaged property consists of land and a rice mill with its machineries standing on the land. it is set out in the plaint that from time to time the Defendants had borrowed money from the Plaintiff and the amount was entered in the Khata, kept by the Plaintiff.

(3.) THE trial court held on consideration of the evidence that the execution of the mortgage has been duly proved. The trial court further held that as the deed was certified to have been properly stamped by the Collector and was admitted into evidence, the question of admissibility could not be raised. He further held that there was no force in the contention of the Defendant that the deed was not registered at all and thus not valid as a mortgage. The trial court however, held that the Plaintiff has failed to prove that the cash consideration was paid on the date of the execuion of the mortgage. As regards the sum of Rs. 46,732/1/6 aliened to have been advanced as a parole debt and which is alleged to have been acknowledged by Defendant No. 1 in the Khata of the Plaintiff, the trial court held that the' acknowledgment of the debt in the mortgage deed was sufficient to fasten the liability on the Defendants and thus it was not open to the Defendants to reopen the matter again. On these findings he decreed the suit for Rs. 46,732/1/6 the principal amount of the mortgage and the interest on the said amount up to the date of the decree.