SRIPAT SINGH Vs. NARESH CHANDRA BASE

JUDGEMENT

(1.) This appeal arises out of a suit to recover money secured on a mortgage of immovable property executed in favour of the father of the plaintiff in 1895. The properties are also subject to other mortgages and the priority of the mortgagees and their assignees was the subject matter of contention at the original hearing of the suit and of the appeal from the preliminary decree which was heard in this Court in 1925.

(2.) The questions of priority were decided in this Court's order dated 27 May 1925, Sripat Singh V/s. Naresh Chandra AIR 1926 Pat. 94 which varied the decree of the Court below and directed that accounts be taken of the dues of the several mortgagees and a decree be prepared for which directions were given in conformity with the provisions of Order 34, Civil P.C. The record was remitted to the Subordinate Judge for the taking of accounts and is now before us for our direction as to the preparation of the final decree. Objection to the statement of account prepared by the Subordinate Judge has been taken on behalf of the contesting defendants 2 to 4, and objection has also been taken on behalf of the plaintiff. On behalf of defendants 2 to 4 (of whom defendant 4 Jamahir Kumari died on 11 October 1925, and is represented by defendant 2) the only objection pressed is that the Subordinate Judge should have given credit for a payment of Rs. 3,971-4-9 said to have been made to the father of the plaintiff on 20 May 1897, and supported by a receipt. Having regard to the interest payable, this credit, if allowed, would affect the amount of the decree to the extent of a very much greater sum. No such payment was pleaded in the written statement in the Original Suit No. 268 of 1919. The objector's case is that the receipt was discovered in April 1929, among the papers relating to the property which had been released from management by the Official Receiver in August 1927. The objector followed up the filing of this receipt with petitions for orders of the Court to call for production of the plaintiff's books of account of 1897 and of the books of account of the Official Receiver. On 9 March 1931, the objector also filed with a petition two original letters dated 16 and 18 May 1897, and on account sheet dated 20 May 1897, and prayed that they might be taken in evidence along with the receipt previously filed.

(3.) The plaintiff objected to the reopening of the question of the amount due under his mortgage bond at this late stage. The Subordinate Judge on 6 May 1930, directed the issue of a commission for the examination in Calcutta of the Official Receiver or a member of his staff in connexion with the accounts. This commission was issued, but the pleader commissioner reported on 10th September 1930, that on the date fixed for executing the commission he found the plaintiff present and ready but no one was there on behalf of the objector. So he returned the commission without examining the witnesses.