(1.) This is a first appeal arising out of a mortgage suit of a quite simple character. The suit was by certain plaintiffs suing as mortgagees to enforce their security against two defendants, who were mortgagors. The result of the suit was that the plaintiffs were given the usual preliminary mortgage decree for sale, and the only contest in this appeal is whether, instead of having a preliminary decree for sale, they are entitled to have as they desire, a decree for foreclosure. I find that this very simple suit has been pending for over seven years. The mortgagees started this endeavour to get this money back by instituting this suit on 7 September 1033, and they paid, as the price of the justice that they hoped to get, a not inconsiderable court, fee of Rs. 1470. They obtained their decree for sale on 3rd February 1935, and it has taken till now a period of nearly six years for the, matter to come in first appeal to this Court. The facts are that, on 31 August 1925, the defendants executed the mortgage in question. In view of the fact that the principal question in this appeal is whether this document constitutes a mortgage by conditional sale, as the plaintiffs contend, or an anomalous mortgage, as the defendants contend, I must look closely at its terms. The mortgage begins by reciting the title of the mortgagors, and then goes on to say: Now we have, of our own accord and free will while in a sound state of mind and without any undue influence mortgaged without possession the entire zamindari property specified below.... to the extent of one-half, for a period of five years, for Rs. 30,000 of the King's coin...
(2.) There then follow certain covenants, the first covenant to pay interest, then a covenant to pay the principal and the accumulated compound interest, "at the stipulated period," that is to say, at the end of the period of five years, thirdly, a provision that the mortgagors were not to be entitled to redeem earlier than at the expiration of the five years, and finally it goes on in these terms: ...that in case of non-payment of the entire amount of principal, interest, and compound interest the mortgagees shall, after the expiry of the stipulated period, have power to obtain proprietary possession of the entire property mortgaged by bringing a suit for a decree for foreclosure and that we shall not have any objection thereto...
(3.) The document then concludes with an attestation clause in these words: We have therefore executed this simple mortgage deed carrying interest by conditional sale so that it may serve as evidence and be of use when, needed.