LAXMANDAS HARAKCHAND Vs. BABAN BHIKARI

JUDGEMENT

(1.) The defendant in this suit has had dealings with the plaintiff for many years, and has advanced money to him upon mortgage, and balances clue on old accounts have been secured by the mortgage of property of the plaintiff. The mortgage-bonds outstanding at present are Exts. 63, 64 & 65, which do not all relate to the same property, Ex. 65 relating to property entirely different fron that to which Exts. 63 & 64 relate. The last of these mortgage-bonds was executed in December 1903. Further monetary dealings took place between the plaintiff and the defendant which are evidenced by promissory-notes commencing with the 1st of August 1905. The defendant in 1909 and 1910 brought four suits in the Jalgaon Court upon promissory-notes executed by the plaintiff subsequent to July 1905.

(2.) The plaintiff then instituted a suit for a general account under the Dekkhan Agriculturists Relief Act, and for redemption of the mortgaged property, and upon his application the four suits filed in Jalgaon on promissory-notes were transferred by the District Court, Khandesh, to the First Class Subordinate Judge in-Dhulia. That Judge has now tried the plaintiff s suit for account and redemption, and in taking an account he has made up one general account of the mortgage transactions and the promissory-note transactions. The mortgages, he finds, were satisfied by profits received by the defendant some time prior to April 1906, and he has taken the defendant as being in receipt of profits at the rate of Rs. 2,000 a year under his mortgages, which profits subsequent to the date of the satisfaction of the mortgage-debts he has applied in the account in reduction of the defendant s claim upon the promissory-notes.

(3.) That manner of taking an account has been challenged in this appeal. It is contended on behalf of the defendant that every mortgage of separate property, even where the suit relates to more than one mortgage, must be the subject of separate account under Section 13 of the Dekkhan Agriculturists Relief Act, and that under each separate mortgago the mortgagee is entitled to retain such surplus profits as he may have got before the date of the redemption suit or the date of the redemption decree, and as an authority for that contention the judgments of Sir Charles Sargent in Janoji v. Jwioji (1882) I.L.R. 7 Bom. 185. and Ramachandra Baba Salhe v. Janardan Apaji (1889) I.L.R. 14 Bom, 19, are referred to. Now if those authorities apply here they are binding upon us. But it appears to me that the case may be decided in favour of the appellant upon a somewhat different ground.