PANCHAM LAL CHOWDHURY Vs. KISHUN PERSHAD MISSER

JUDGEMENT

(1.) This a suit brought for redemption of a mortgage. There was a kabuliat executed by the defendant in favour of the plaintiff's father in respect of the property in suit which the defendant took on lease. That property is 8 annas of mahal Siswa Rasulpur. There was also on the same day, namely, 14 December 1884, a mortgage executed by the father of the plaintiff in favour of the defendant for a sum of Rs. 4,000.

(2.) The learned Subordinate Judge has found that the lease and the bond, which were executed on the same day formed one transaction and the two taken together constituted a usufructuary mortgage. That finding has not been contested on appeal.

(3.) On the 16 June 1885, a second mortgage was executed by the defendant and on the 15 June 18S9, a roka or hand-note was executed by the plaintiff's father in favour of the defendant. On the 16 January 1890, a suit was brought upon this roka and a decree was obtained for a sum of Rs. 1,200 odd. Then on the 27 May of the same year, a suit was brought on the, 2nd mortgage and a decree given for Rs. 4,052. The decree, however, on the roka was a decree which was pat into execution and in the course of the execution the plaintiff's father made an application for time which is Ex E. and which is in these terms: In the above case (No. 190 of 1890) the sale of the properties of your petitioners, the judgment-debtors, is fixed for to-day ; and it is necessary for the judgment- debtors to pay the decretal money in this case as well as the other duesof the said decree-holder, viz., under Decree No. 50 of 1890 passed by this Court for Rs. 4,052-9 ard also the money due under the bond, dated the 14 December 1884, for Rs. 4,000 and it is impossible for your petitioners the judgment-debtors to raise money unless sufficient time is granted to them. Your petitioners, therefore, beg to file this petition and pray that the sale may be stayed to-day and it may be fixed for the 28 August 1890 which is the second sale day in the month of August, without issue of fresh attachment processes and fresh sale proclamations. The attachment processes and the sale proclamations have been duly served. Your petitioners the judgment-debtors shall raise no objection on the ground of non- service of fresh attachment processes and fresh sale proclamations or on the ground of inadequacy of price &c, and in case of sale your petitioners the judgment-debtors shall not raise any objections to the purchase made by the decree-holder. The decree-holder also agrees to the above matter and the signature of the decree-holder's pleader is affixed below.