HANUMAN MAL Vs. JATAN MAL

JUDGEMENT

(1.) The plaintiff-appellant had filed a suit in the Court of learned District Judge, Bikaner on 22-4-1968 against the respondent-defendant alleging that defendant has taken a loan of Rs. 37,000/- from the plaintiff and executed a mortgagedeed in his favour in respect of a house situated in Mohalla Rangadi and Bothra in the city of Bikaner on 9-4-1949. As per the terms of mortgage-deed, which was a simple mortgage, the amount was payable with interest @ 9 Annas (56 p.) per hundred per month. The mortgage-deed dated 9-4-1949 (Ex.-2) recites that the mortgage amount was payable on demand.

(2.) The appellant also averred in the plaint that the defendant paid Rs. 1,000/- through cheque dt. 12-10-1960 in respect of which a letter was also written by him in his favour. According to the plaint averments, the payment of Rs. 1,000/- as well as the written document dated 11-12-1960 (Poha Badi 8 Samwat 2017) acknowledging sending of cheque of Rs. 1,000/- against mortgage debt resulted in renewal of the period of limitation under Sections 18 and 19 of the Limitation Act, 1963. He further stated in the plaint that plaintiff sues for a decree for Rs. 40,000/- consisting of Rs. 37,000/- as principal and Rs. 3,000/- by way of interest until the date of filing of the suit, though the amount of interest is much more as per the mortgage-deed. Claim for interest amount exceeding Rs. 3,000/- up to the date of suit was given up.

(3.) A decree for Rs. 40,000/- sought against the defendant and it was also prayed that in case the decree is not satisfied, the property under mortgage may be attached and sold for recovery of the aforesaid amount; and in case, the proceeds of mortgaged property are not sufficient to satisfy the decree, the decree-holder may be permitted to execute decree against other properties of the defendant.