DATTATRAYA NAGAPPA WAGH Vs. SAVLO SUBRAO BHUJLE

JUDGEMENT

(1.) The plaintiff-appellant got a decree in suit No. 116 of 1921 against defendants Nos. 1, 2 and 4 for Rs. 1,057-8-0 and costs, which amounted to Rs. 142-10-0. The decree provided interest on Rs. 1,000 till realisation at nine per cent. The decretal amount was made payable by instalments. There was a default clause in the decree, which provided that if any two instalments went into arrears the whole amount should be recovered at once. There was a default in payment of two instalments, and the decree-holder pressed his claim against the judgment- debtors and asked the Court which passed the decree to award the whole amount due under the decree by filing a darkhast for that purpose. While the darkhast was pending, the mortgage in suit was passed in favour of the plaintiff by defendants Nos. 1, 2, and 5, and by defendant No. 1 for defendants Nos. 3 and 4 on the strength of a power-of-attorney, and as guardian of defendant No. 6. The mortgage was for a sum of Rs. 1,495, and bore interest at nine per cent, per annum on the whole amount, The present suit was brought by the plaintiff against defendants Nos. 1 to 6 to recover the amount of the mortgage with future interest and costs of the suit. Defendants Nos. 7 and 8 were impleaded as puisne mortgagees.

(2.) The defence was that the mortgage-bond was void as it offended against the provisions of Section 257A of the old Civil Procedure Code, and that, therefore, under Section 13 of the Dekkhan Agriculturists Relief Act it was open to the defendants to take the plea that the bond was bad. The defendants further contended that the mortgage was not binding at any rate upon some of them who were not parties to the decree.

(3.) The trial Court held that the mortgage was not in contravention of Section 257 A of the old Civil Procedure Code. It, however, found that defendants Nos. S and 6 were not liable under the mortgage. Accounts were taken and a sum of Rs. 1,770 and odd was found due. A decree was passed for the amount with future interest as provided for in the decree.