SHAILESH CHANDRA GUHA Vs. BECHAI GOPE

JUDGEMENT

(1.) This appeal is by the plaintiff and arises out of a suit for enforcement of a mortgage by sale of the mortgaged properties. The mortgage bond is, dated the 4 June, 1907, and was executed by defendant No. 1 in favour of one Mathura Mohan Saha for Rs. 130 by which he mortgaged all his properties. The stipulated rate of interest was Rs. 5 per cent. per month with five monthly rests and the due date was in the Aswin following the date of bond. Mathura Mohan died some time in June or July 1916, and his sons, pro forma defendants Nos. 29 to 33, succeeded to his interest as his heirs. Plaintiff obtained an assignment of the bond from the pro forma defendants for a consideration of Rs. 900 by a deed dated the 26 September, 1919, and brought this suit on the 27 October, 1919. The mortgage money Hue on that date is said to have amounted to Rs. 83,917-12 as; but considering that so much money cannot be realised from the mortgage property plaintiff has claimed only Rs. 9,999 and abandoned the claim for the balance. Defendants Nos. 2 to 28 have been impleaded as having acquired some interest in different portions of the mortgage property subsequent to the mortgage. Defendants 3, 4, 5, 6 and 7 and defendant No. 8 only appeared and contested the suit. Defendants 3, 4 and 5 do not claim any right independently in themselves and are in the same interest as defendants 6 and 7. Defendants 6 and 7 purchased properties Nos. 2, 4, 5 and 11 of the schedule to the plaint from the defendant No. 1 by a kobala dated the 7 May, 1919, and the defendant No. 8 took mortgages of a 1/2 anna share of property No. 2 and 2 annas share of properties Nos. 1, 3, 7 and 10 by three deeds, two of which bear the date of 7th August, 1918, and one of 8 October, 1918.

(2.) The defence of defendants 6 and 7 is contained so far as the present appeal is concerned in paragraphs 7, 8, 9 and 13 of their written statement. Shortly stated their story is that defendant No. 1 having proposed to sell his properties to these defendants, defendant No. 7 went to the pro forma defendant No. 30, in order to ascertain the dues on the mortgage bond of defendant No. 1 and a final settlement was arrived at with defendant No. 30, who is the karta of the family, that the mortgage would be discharged on payment by defendants 6 and 7 of the principal with interest as in previous bonds (i.e. 14 annas per cent. per month) and on the absolute faith of that statement these defendants settled the price with defendant No. 1 and purchased the properties; but when they went to pay the mortgage-debt as settled, defendant No. 30 did not accept the money on some pretext or other. They plead that the mortgagees were guilty of a breach of contract and further they were estopped from claiming a larger amount than what they represented to be due, and so the plaintiff cannot recover any sum in excess of that amount. It is unnecessary to state the defence of defendant No. 8 here as it will be dealt with later on, The Subordinate Judge passed a decree in favour of the plaintiff for Rs. 381-0-6 calculating the interest on the principal at the rate of 14 annas per cent. against all the defendants.

(3.) The plaintiff has appealed. Before dealing with the questions raised by the appellant the contention of the respondents that the frame of the suit is in contravention of Order 34, Rule 1 of the Civil Procedure Code may be disposed of.