RAMPHAL SAHU Vs. BABU SATDEO JHA

JUDGEMENT

(1.) On 7 July 1924, plaintiff 1 executed a mortgage bond for Rs. 1500 carrying interest at the rate of two per cent, per mensem with six monthly rests in favour of one Pandit Kapileshwar Missir, a pleader practising in the Courts at Laheria Sarai. On 16 October 1924, he executed another mortgage for Rs. 2000 with interest at two per cent, per mensem with quarterly rests in favour of the same mortgagee. On 14 May 1925, he executed a third mortgage for Rs. 2500, with interest at Re. 1-8-0 per cent, with annual rests in favour of the same mortgagee, and on 26 May 1926 he executed a fourth mortgage in favour of the same person for Rs. 7000 with interest at one per cent, per mensem with six-monthly rests. In all these four mortgages, the property mortgaged was an eight annas share in mauza Nebahi.

(2.) In order to redeem these bonds, plaintiff 1 sold five annas out of the eight annas share in village Nebahi already mortgaged to the four defendants on 30th June 1929 for a sum of Rs. 27,737. He left with the purchaser a sum of Rupees 4658-12-6 to redeem the first bond, Rs. 3695 for the second bond, Rs. 3033-10-0 for the third and Rs. 12,592-2-0 for the fourth bond. The four defendants redeemed the first two bonds and not the third and fourth. It transpired that plaintiff 1 had not left sufficient money to redeem the third bond, as the parties were apparently under a mistaken belief that this bond was for Rs. 1500, whereas in fact it was for Rs. 2500. On 20 November 1933 plaintiff 1 sold a further one anna share of his eight-anna interest in mauza Nebahi to the four defendants for Rs. 2500, and it is conceded that the four defendants had after this sale sufficient funds to discharge the third and fourth mortgages.

(3.) They however failed to do so, and eventually this suit was instituted praying that the liability of the four defendants be assessed at Rupees 33,070-4-2 1/2 and further that it might be ordered by the Court that within a period to be fixed the defendants should pay to Pandit Kapileshwar Missir or should deposit in his name in Court the said sum of Rs. 33,070-4-2 1/2 and cause the mortgage bonds to be filed in Court. In case of failure to pay the said debt in the manner indicated above, a money decree was prayed for the said sum.