MOBARAK MOLLA Vs. HECHAMUDDI MOLLA

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Officiating Subordinate Judge, First Court, of Faridpur; and the suit was brought to recover the sum of Rs. 780 on accounts which ware alleged to have been settled between the plaintiff and the first defendant.

(2.) The first Court gave judgment in favour of the plaintiff. On appeal to the lower Appellate Court, that judgment was reversed and the suit was dismissed; and the plaintiff has appealed by way of second appeal to this Court.

(3.) It appears that accounts were settled between the parties sometime about August 1916, but in August 1916 the plaintiff agreed to take a mortgage-bond from the first defendant in his (plaintiff s) favour. That mortgage-bond is dated the 9 Bhadra 1323 B.S., which, I understand, corresponds wi August, 1916. The due date for payment of the money, which was mentioned as Rs. 750 in that mortgage, was the end of Pous 1323 B.S., which corresponded to the 13 of January 1917. Therefore, the money under the mortgage did not become due until the 13 January 1917. The learned Judge has found that the liability for the balance found to be due to the plaintiff on the settled accounts was superseded by reason of the plaintiff's accepting the mortgage-bond from the defendant, and I agree with him. Consequently, the plaintiff was in error in suing the defendant and basing his claim upon the alleged settled accounts. He ought to have waited until the money became due under the terms of the mortgage and then sued the defendant. The mortgage bond is not registered and the learned Vakil for the appellant has argued that although the mortgage-bond by reason of its not being registered could not be used by the plaintiff for the purpose of getting a decree charging the land, still it would have been open to the plaintiff to sue for the money due under the covenant in the mortgage bond. This suit was brought on the 3 of January 1917; and, as I have already stated, the money did not become due under the mortgage till the 13 of January 1917. Consequently, in my judgment, the learned Judge of the lower Appellate Court was right in holding in this suit, based as it is, not upon the covenant in the mortgage-bond, but upon the settled accounts, that the plaintiff could not recover.