JALESHWAR RAI Vs. ANRUT RAI

JUDGEMENT

(1.) It appears that one Payag Rai, father of the first five defendants-appellants and grandfather of other six, executed a deed of mortgage on the 27th of September 1883 in favour of Anrut Rai, plaintiff-respondent No. 1, and the ancestors of the other plaintiffs-respondents. The mortgage was given in respect of ancestral property in lieu of Rs. 999, carrying 14 annas per cent, per mensem interest, and was redeemable on June 27th, 1885. In 1891, the mortgagees instituted a suit against Payag Rai only, without impleading his sons, to recover Rs. 1.567-7-4 1/2, the amount due on foot of the mortgage of 1883 and for sale of the mortgaged property in default of payment. One of the objections to the suit was that post diem interest at the stipulated rate of 14 annas per cent, per mensem could not be claimed under the terms of the deed of September 27th, 1883. The Court of first instance disallowed the objection and passeda decree on July 3rd, 1891, against Payag Rai for Rs. 1,548-11-6. On appeal, the learned District Judge gave effect to the objection of Payag Rai as to interest holding that the mortgagees were entitled to recover post diem interest by way of damages only, which he allowed at 6 per cent, per annum. The decree of the first Court was modified and the claim of the mortgagees was decreed for Rs. 1,321-7-6 on June 11th, 1892.

(2.) On the 18th of August 1896, the first five defendants-appellants, the sons of Payag Rai, instituted a suit against the mortgagees for a declaration that the decree obtained by the latter against Payag Rai was not binding on them as they were not parties to it and that their share in the mortgaged property was not liable to sale under it. The claim of Payag Rai s sons was decreed on the 11th of November 1896. On the 20th of February 1897, the share of Payag Rai only in the mortgaged property was sold in execution of the decree of June 11th, 1892. The sale realized Rs. 725.

(3.) On the 13th of February 1910, eighteen years after the decree obtained against Payag Rai and thirteen years after the sale of his share, the plaintiffs- respondents brought the suit, out of which this appeal has arisen in the Court of the Subordinate Judge of Azamgarh against the sons and grandsons of Payag Rai to recover Rs. 2,093-2-6, the balance alleged to be due on the mortgage of 1883.