GOVIND NARAYAN Vs. SUNDER LAL

JUDGEMENT

(1.) THIS is a defendant's appeal against the judgment and decree of the Civil Judge, Kota dated 27th September, 1972 for the recovery of mortgage -money.

(2.) THE plaintiff respondent instituted a suit against the defendant for the recovery of Rs. 18,500/ - on the basis of a mortgage deed executed by the defendant on 12 -10 -66. It was stipulated in the mortgage deed that mortgage amount shall be payable in two years Further, it appears that the defendant mortgagor executed a rent note in respect of the mortgaged house and on the basis of that rent note the mortgagees instituted a suit for arrears of rent on 12th of March, 1968. The defendant admitted having executed the mortgage deed. He also admitted consideration of the mortgage to the extent of Rs. 17,000/ - and for the remaining amount of Rs. 1,500/ -, he pleaded that this amount was not paid to him According to the defendant, the plaintiffs charged extra amount of interest to the tune of Rs. 1,500/ - and included in the mortgage amount of Rs. 18,500/ -.

(3.) MR . Porwal, learned Counsel for the defendant -appellant, has in the first instance, argued that the suit for the recovery of mortgage money was barred under Order 2 Rule 2 CPC. His contention is that the mortgage deed and the rent note constituted one transaction and since the mortgagees filed a suit for the recovery of rent on the basis of rent note the present suit for recovery of mortgage money was not maintainable. In my opinion, this contention is wholly untenable. The mortgage amount could not have been recovered by the mortgagees before the expiry of two years according to the terms of the mortgage deed. The rent suit was filed on 12.3.68 i.e. before the expiry of the period of two years. On the date the rent suit was filed the mortgage amount had not become due. In this view of the matter, Order 2 Rule 2 CPC is not at all applicable and it cannot be said that the present suit was barred under Order 2 Rule 2 CPC.