KALURAM CHAUDHURY Vs. RAGHUPAT DUBEY

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit to enforce a mortgage. On 19-7-1932, one Godraj Choudhury, the son of Mt. Govindi, defendant 3 in the present action, executed a mortgage bond in favour of the plaintiff for a principal sum of Rs. 800 hypothecating the properties which have been described In the plaint as the mortgaged property. The executant died sometime after the execution of the mortgage bond and on 12-9-1941, the plaintiff sued for the recovery of the principal amount and the interest payable on the mortgage bond after deducting a sum of Rs. 305, said to have been paid to him after the execution of the mortgage bond. This suit was decreed on compromise on 13-11-1941, the compromise having been entered into between the plaintiff and the present defendant 3. On 18-3-1941, defendant 1 had purchased the mortgaged property in execution or a money decree and this sale was confirmed on 13-11-1941, and was followed by delivery of possession. Later on defendant 1 transferred the mortgaged property to defendant 2 by a registered sale deed dated 10-2-19-12. The present suit was instituted by the plaintiff on 12-7-1945, as against defendant 1 and his transferee, defendant 2. Mt. Govindi was also impleaded as a defendant in this action.

(2.) Defendants 1 and 2 resisted the plaintiff's claim and the main contention urged by them was that the mortgage bond in question was not a genuine document as it had been executed by Godraj with a view to defeat his creditor Ram-deyal Narsingh Das firm, in whose favour the money decree, in execution of which the properly came to be sold, had been passed. It was contended that no consideration had passed for this document and that the transaction was absolutely a sham transaction.

(3.) The Courts below have dismissed tlie suit on the finding that the mortgage bond in question was without consideration and that it had been executed with a fraudulent intention.