AMAR SINGH Vs. KULDIP SINGH

JUDGEMENT

(1.) Mr. Amar Singh, retired Deputy Superintendent of Police, brought a suit against his cousin Kuldip Singh for the recovery of Rs. 1,48,1257-, made up of Rs. 1,20,000/- as principal and Rs. 28,123/- as interest by sale of mortgage properly which was described in the plaint. This suit was brought on the 17th of August 1948 and was decided in favour of the plaintiff by the trial Court on the 15th of March 1950. On that date the trial Judge grunted the plaintiff a preliminary decree for Rs. 1,-48,125/- with costs. The plain-tiff had joined three other persons as defendants with Kuldip Singh, defendants Nos. 2 and 3 being subsequent mortgagees and defendant No. 4 being the transferee from defendant No. 1 of his rights and interests in the property. The trial Judge passed the decree against all the defendants. The Judge also allowed the plaintiff future interest till realization at the rate of 6 per cent, per annum, payment to be made within three months from the 15th March 1950, failing which the plaintiff would be at liberty to get the mortgaged property sold on obtaining a final decree. There were directions regarding the other three defendants which it is not necessary to mention. This decree was made final on the 15th of July, 1950, on an application made by the plaintiff on the 16th of June, 1950, there having been no payment made. From the preliminary and the final decrees five matters are pending in this Court. There is Regular First Appeal No. 129 of 1950 by the defendant Kuldip Singh in which he wanted the preliminary decree to be set aside. There is Regular First Appeal No. 103 of 1950 put in by the plaintiff in which he wanted the date from which future interest was to run to be amended in the decree. The plaintiff had put in an application before the trial Judge for the amendment. The Judge refused the amendment. From the order refusing the amendment a revision was taken to this Court which is Civil Revision No. 279 of 1950. After the final decree was drawn up the defendant appealed from the final decree and this is Regular First Appeal No. 248 of 1950. The defendant also put in Execution First Appeal No. 251 of 1950. This is an execution appeal, the ground of appeal being that the Judge had ordered that on proper interpretation of his decree the date of running of the future interest was the date of the suit. This judgment will dispose of all these five matters.

(2.) Kuldip Singh mortgaged on the 3rd of July, 1945, the factory known as Kuldip Chemical and Oil Mills situated on the Grand Trunk Road, Am-bala Cantonment, together with all the lands buildings, machines, tools and stores etc., to Mr. Amar Singh for a sum of Rs. 1,20,000/- by a registered mortgage deed. That deed stated that the mortgagee Amar Singh had already advanced a sum of Rs. 92,661/13/- to the borrower Kuldip Singh. The details of this sum were mentioned in the deed, It was mentioned that the borrower acknowledged to have received these sums and a further sum of Rs. 27,333/3/- was being paid to Kuldip Singh by Amar Singh before the Sub Registrar. The rate of interest for the payment of the money was 7 1/2 per cent. This suit, as already stated, was brought on the 17th of August, 1948.

(3.) On the 8th of January 1949, Amar Singh and Kuldip Singh were examined by the trial Judge. Kuldip Singh stated that the mortgage deed had been executed by him, that he had received Rs. 27,000/- odd towards its consideration and the rest of the money was spent by the plaintiff in partnership in the Industrial Syndicate and the Kuldip Singh Chemical Oil Mills. The accounts of the partnership wore never gone through. He further stated that he had paid the plaintiff a sum of Rs. 35,000/-, but the receipt of this sum was sent to his lawyer whom he called Mr. Inderjit of Lahore. He said he did nob know the whereabouts of Mr. Inderjtt. He pleaded that the plaintiff was a money-lender. The payment of Rs. 35,000/- was made at the end of 1946 or the beginning of 1947.