CHANDANMAL Vs. RAWATMAL

JUDGEMENT

(1.) This is a defendant's appeal against the judgment and preliminary decree passed by the District Judge, Balotra, Shri B.C. Ojha on 30-9-67 modifying the preliminary decree passed by Shri R. L. Gupta, Civil Judge, Balotra on 30-1-67 in Civil Suit No. 146/1956 for the sale of the mortgage property. The Civil Judge passed the preliminary decree for Rs. 400 as principal amount and Rs. 262 on account of interest, in all for Rs. 662, whereas the learned District Judge disbelieving the plea of payment of Rs. 2,100 towards principal and Rupees 350 towards interest, decreed the plaintiff's suit in toto for a sum of Rupees 2,500 as principal amount and Rupees 800 as interest, total Rs. 3,300.

(2.) The case has a chequered career or history. In order to appreciate the points of controversy arising in this appeal, it would be necessary to state a few facts in chronological order.

(3.) The plaintiff Rawatmal instituted a suit for sale of the mortgage property in the Court of Civil Judge, Balotra on 22-5-56 alleging that the defendant Chandanmal mortgaged his house described in para 1 of the plaint on Kartik Sudi 14,Samvat 2006, corresponding to 23-11-50 for a sum of Rs. 2,500 with interest @ 9% per annum. The defendant executed a rent note in favour of the plaintiff and under the terms of mortgage deed, the mortgage amount was to be paid by 22-11-53. The defendant did not pay the mortgage amount as also interest after Baisakh Sudi 14, Samvat 2009. The plaintiff claimed a sum of Rs. 2,500 as principal amount and Rs. 800 as interest and prayed for a preliminary decree for the sale of the mortgage property,