MATHURI Vs. GURCHARAN

JUDGEMENT

(1.) This appeal arises out of a suit for sale on the basis of a mortgage dated 1st November 1892, executed by one Lachman Singh. The principal sum secured was Rs. 1,300. In regard to the sum of Rs. 300, the Courts below have dismissed the suit but in regard to Rs. 1,000, the claim has been decreed. It is common ground that there was a prior mortgage-deed of 1890 by Lachman Singh and the Courts below have held that the second mortgage-deed covered the balance due on the deed of 1890 plus a sum due on accounts. Lachman Singh s defence was that of the Rs. 300 Rs. 300, though handed to him at the "time of registration, had been handed back to the mortgagee afterwards. As to the whole debt he pleaded that he used to borrow money from Mangli Lal, the father of the plaintiffs and re-pay him from time to time; that the mortgage-deeds were taken from him from time to time to secure the amounts found due from him, that accounts had repeatedly been struck between them in the books of Mangli Lal and acknowledgments taken from him that if those accounts-books were examined they would show clearly that the balance was in his favour and not against him the fourth Issue was: Was the mortgage debt paid by the mortgagor in whole or in part. The defendant called upon the plain-tiffs to produce their account-books from the year Sambat 1940 up to Sambat 1960.

(2.) This was first done before the written statement was filed. The plaintiffs refused on the ground that the written statement must be filed first.

(3.) After it had been filed, they produced the books of Sambat 1958 to Sambat 1960 The defendants pressed for the books prior to Sambat 1958 as they were said to contain the entries as to payments. Thereupon the plaintiffs Pleader on instruction stated that there were not and never had been any regular books kept prior to Sambat 1958 that the account had been irregularly kept on bits of paper or loose sheets and they could produce no books.