RAMCHANDRA SAU Vs. KAILASHCHANDRA PATRA

JUDGEMENT

(1.) This appeal is directed against a decision and decree passed by the learned District Judge of Midnapur, affirming the decision and decree passed by the Subordinate Judge, 3 Court of that district, in a suit for enforcement of a mortgage security. The plaintiff's case may be shortly stated: defendants 1 and 2 and the father of defendant 3 had borrowed eight hundred maunds of paddy on the security of properties mentioned in the plaint, that they had agreed to pay sixteen hundred maunds of paddy in 14 instalments, in 14 years from the year 1322 to 1336 B. S., that, in default of payment of four successive instalments, plaintiff instituted a suit for recovery of sixteen hundred maunds of paddy. The defendants in that suit, as instituted by the plaintiff previously, contested the suit, and the suit was decreed for Rs. 1,150 as price of paddy for four instalments. In that suit, claim for ten instalments was found to be premature; that for nonpayment of the amount decreed in that suit, plaintiff executed the decree and put the mortgaged property to sale; that on the date of sale, i.e., on 14 March 1922, a solenama was entered into, after payment of decretal amount, to the effect that for the amount due on the ten subsequent instalments, the defendant would execute a kobala, within one week, of 2 bighas and 15 cottas of land, for a consideration of Rs. 400. It was further stated in the plaint that there was an agreement between the parties that, in default of the stipulations contained in the solenama, the plaintiff would be at liberty to sue for the ten subsequent Instalments. It was averred also, that within one week the defendants had not executed any kobala of the land, and the plaintiff was therefore compelled to bring the present suit for recovery of price of paddy, with compound interest for the ten subsequent instalments.

(2.) The defendants resisted the plaintiff's suit, and the main contention advanced on behalf of the defendants was this: that Rs. 400 had been paid to the plaintiff as was due in respect of ten instalments after making deductions, as fixed by the solenama, in full satisfaction of the claim, as the plaintiff would not take the kobala of the land mentioned in the solenama, as the land had been previously mortgaged. The defendants based their case, so far as the payment of Rs. 400 was concerned, on a receipt Ex, A in the case for Rs. 400 paid to the plaintiff, on 27 March 1922, and it was said, in the written statement, that the amount was given as the price of the lands mentioned in the solenama, and the receipt is stated to have been written by the appellant himself. On this state of the pleadings, the material issue raised in the suit was issue 3: Has the bond been satisfied in the manner alleged in the written statement?

(3.) The Court of first instance, having gone into the materials before it with great care and attention, came to the conclusion that, so far as the solenama was concerned, it was a contract for the satisfaction of a mortgage, in a particular way, namely that of a payment of Rs. 400, in respect of the ten instalments that were due at the time when the solenama was executed between the parties, and as finding of fact arrived at by the trial Court it came to the conclusion that there was not the least doubt that the receipt was genuine, and the plaintiff had accepted the amount of Rs. 400 in satisfaction of his claim. It was further held by the Court of first instance that the endorsement on the back of the solenama was genuine. In this view of the matter, the plaintiff's suit was dismissed by the trial Court. The plaintiff appealed, and the learned District Judge has affirmed the findings arrived at by the trial Court and the decision given by that Court. The learned District Judge has, on a very careful review of the evidence before him given by the parties in the suit, come to the conclusion that he felt that there was no justification for rejecting the receipt, Ex. A, as forged. He has also come to the conclusion that the solenama had been duly entered into, as between the parties, that the appellant had refused to accept the lands mentioned in the solenama, and that the defendants therefore had to raise the amount of Rs. 400, and pay in cash. The learned District Judge concludes his judgment by saying that it must be held that the receipt should be accepted as genuine, and that the mortgage deed must be held to have been satisfied by the payment of Rs. 400 as evidenced by the receipt, Ex. A. As mentioned already, the learned District Judge has affirmed the decision and decree passed by the trial Court.