NIAZ AHMAD KHAN Vs. PARSOTTAM CHANDRA

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for sale on the basis of a mortgage deed dated 21 September 1923, for Rs. 20,000 carrying interest at 9 per cent per annum with annual rests. This document was executed probably in lieu of the amount due under an earlier bond of 13 December 1916, on the basis of which a preliminary decree had been passed. There was additional consideration of Rs. 1,200 which was paid in cash before the Sub-Registrar. The first document stood in favour of Jai Kishen Das, but the second document was taken in the name of his grandsons who were minors.

(2.) The main defence to the suit was that the mortgage in question was without consideration and had been obtained fraudulently and it was also pleaded that it had not been properly attested. There was a. further plea that the integrity of the mortgage was broken. The learned Subordinate Judge has overruled all these contentions and decreed the claim. The defendants have appealed from the decree and raised these points afresh.

(3.) The suit on the basis of the earlier bond resulted in a preliminary decree for sale dated 8 March 1923. It had been instituted by Jai Kishen Das as the sole plaintiff. It is now an admitted fact that the sole plaintiff died on 2 May, 1923 and no application for the substitution of the names of his heirs was ever made within the three months allowed by law. On 12 September 1923 that is to say more than three months after the death but within 60 days of the expiry of the period of three months an application was made on behalf of the heirs of Jai Kishen Das for the preparation of the final decree. The fact of the death was mentioned in this application but there was no formal prayer for the substitution of the names or for the setting aside of the abatement. The prayer was for the passing of a final decree. An order for the issue of notice was passed on the same day. It is a controversial point whether notices were actually served on the mortgagors or not. File D of that suit has now been weeded out and it is not possible definitely to ascertain whether services were duly effected. The plaintiffs have however produced the original summons issued to Dr. Vaish who was arrayed on the opposite side of that proceeding as showing that the notices must have been issued.