SATYA NARAIN PRASAD Vs. ADYA PRASAD SINGH

JUDGEMENT

(1.) This appeal by the defendant is directed against a preliminary decree for sale in a mortgage suit.

(2.) On 21st July, 1949, the appellant executed a Rehan deed (Ext. 2) for Rs. 6,000 (six thousand) in favour of the plaintiff respondent. The deed was for one year expiring on 30th of Baisakh 1357 Fs. equivalent to 13th May, 1950. It was stipulated that the mortgagor would be entitled to redeem the mortgage by payment of the entire mortgage money on the said date or at the end of the month of Baisakh of any of the years following. On 25th July, 1949, the appellant executed another document known as Hunda in favour of the respondent. The term of this Hunda was also to expire on the 13th May, 1950 and the appellant was to pay a sum of Rs. 720 as rent to the respondent for his possession of the mortgaged property during that period. The appellant paid Hunda rent up to 1360 Fs. After he fell in arrears in respect of 1361 and 1362 Fs. the respondent instituted a suit against the appellant for recovery of the Hunda rent of the aforesaid two years. Both the courts below took the view that the Rehan and the Hunda formed part of the same transaction and as such no decree for rent could be passed but they granted a decree for interest @ 9% per annum, that is to say, Rs. 540 per year on the principal sum of Rs. 6,000 in favour of the respondent. The appellant then preferred a second appeal. It was numbered as 757 of 1959. The appeal was allowed on the ground that the suit for realisation of Hunda rent was not maintainable and the decree passed by the courts below on the footing that the decree for realisation of interest only could be passed was baa. Thereafter the respondent instituted the present suit claiming a mortgage decree for Rs. 10,838, 6,000 being the principal, and 4838 interest from 1361 Fs. till the date of the institution of the suit @ 9% per annum with a direction for sale of the mortgage property for realisation of the said decree. In the alternative the respondent also claimed relief for recovery of Khas possession over the mortgaged land together with the past and future mesne profits. According to the respondent the transaction in question was a casual advance made by him to accommodate his friend, the appellant.

(3.) The appellant in his written Statement admitted the advance of the money to him on the basis of exhibit 2, but his defence was that the suit was not maintainable being barred under the provisions of Section 4 of the Bihar Money Lenders Act and by the law of limitation. He denied that he was a friend of the appellant and the transaction in question was a casual advance by the respondent to accommodate him. According to him the respondent was a professional money lender and had no money lending licence on the date of the advance. The money was not advanced by the respondent but by the joint family of which Ambika Singh, the father of the respondent was the Karta and as he was not made a party to the suit it was bad for his non-joinder. He claimed that the suit was barred under the provisions of Order 2, Rule 2 of the Code of Civil Procedure. His case further was that out of the mortgaged money a sum of Rs. 3,500 was adjusted towards the consideration of a sale deed, exhibit "1" dated the 10th of August, 1951, which he and his wife executed in favour of the joint family in the name of the son of the respondent and that he further paid in cash Rs. 612/8/- and Rs. 65 on two different occasions to the father of the respondent. A schedule was appended to the written statement, according to which only a sum of Rs. 3698/14/- was due from the appellant on the basis of the mortgage deed.