MAROTIRAO Vs. MANKUWARBAI

JUDGEMENT

(1.) THE facts necessary for the disposal of this appeal are shortly these: On 5th June 1916 Chandrabhan (since deceased) the father of defendants 1 and 2, Marotirao and Dnyanoba, acting for himself and as their guardian and his eldest son Trimbakrao, also since deceased, the father of defendant 3 Bembarao, executed a mortgage in favour of the plaintiff for Rs. 13,000. The mortgaged property consisted of nine fields and one house. The consideration of the mortgage was made up as under: Rs. 2,375 taken for payment to one Bapuji on a prior mortgage (Ex. P-3). " 5,800 due to the plaintiff on bahi khatas. " 4,825 taken in cash before the Sub-Registrar.

(2.) THE debt was repayable in 13 annual instalments of Rs. 1,000 each and compound interest at 12 annas per cent per mensem on the whole amount was payable with each instalment as it fell due and failure to pay any two instalments made the whole debt payable at once. Under this contract the first two instalments and the interest payable for two years amounting in all to Rs 5,232-4-0 was paid up till the year 1921 and there being subsequent defaults the plaintiff brought the suit to recover the balance of Rs. 23,232-14-0 due from the defendants till the date of the suit. Defendants 4, 5 and 6 were made parties to. the suit on the ground that they had subsequently purchased a part of the mortgaged property on 6th May 1925 for Rs. 20,000 which they had undertaken, to pay but did not pay to the plaintiff towards the satisfaction of the mortgage debt in suib.

(3.) THE trial Court found that the mortgage deed in suit was duly executed for consideration which was binding upon all the defendants; that the plaintiff could not claim more than Rs. 22,000 under the rule of damdupat; that the name of defendant 4 was only nominally entered in the sale deed of 1925 and that he should therefore be discharged from the suit: that the interest claimed was not penal; and that the plaintiff's claim for a personal decree against the first three defendants was barred by time. Accordingly a decree for Rs. 22,000, together with Rs. 1,457-8-0 interest at Rs. 6 per cent per annum on Rs. 11,000 from 16th December 1926, the date of suit to 1st March 1929, the date fixed for payment of the decretal sum, and Rs. 1,520-12-0 for costs of the suit amounting in all Rs. 24,978-4-0, was passed under Order 34, Rule 4, Civil P.C., against all the defendants excepting the fourth who was discharged from the suit. It is against this decree that the first threefdefendants have filed the present appearand the plaintiff has also filed cross-objections.