DHANRAM RAGHO Vs. GANPAT SADASHIV

JUDGEMENT

(1.) This is a suit to recover Rs. 3,300 due on a mortgage bond dated the 28 December, 1895. The contention of the defendant was that the mortgage deed was illegal under the provisions of Section 257A of the Civil P. C.. The Court of first instance held that objection good and rejected the claim. The lower Appellate Court on the same ground, after referring to the reported cases, confirmed the decree of the lower Court and rejected the appeal.

(2.) In the appeal before us the learned Advocate-General has pleaded that the mortgage bond was not an agreement for the satisfaction of the judgment-debt within the terms of Section 257A, and he has relied on the ruling of the learned Chief Justice in the case of Tukaram V/s. Anantbhat (1900) 25 Bom. 252. The present case can be distinguished from the case quoted above in one respect, namely, that in that case it was found that it was not an agreement to give time and that it did not provide for payment of any sum in excess of that due under the decree. In the course of his judgment the learned Chief Justice referred to the various decided cases and commented on them. In construing the case of Heera Nema v. Pestonji decided by a Full Bench of this Court, he remarked that in t(1898) 22 Bom. 693hat case the agreement for the satisfaction of the judgment-debt in imposing a liability to, pay 3 per cent, per mensem, or 36 per cent, per annum, as interest clearly provided for the payment of a sum in excess of the sum accrued due under the decree.

(3.) The Full Bench case of Heera Nema V/s. Pestonji (1898) 22 Bom. 693 has been relied on by the respondent; and we think that the present case can rightly be decided in accordance with the oiling of the Full Bench in that case. The amount due under the decree was a Bum of Rs. 2,370-7-3. The mortgage deed shows that a further sum of Rs. 59-8-9 is alleged to have been paid in cash, and the bond is passed for the sum of Rs. 2,430, carrying interest at the rate of 14 annas per cent, per mensem, It seems to us, therefore, that this case is practically on all fours with the Full Bench case, and, therefore, we should follow that decision in holding that the agreement in this case does fall within the purview of paragraph 2 of Section 257A, and that it is, therefore, void.