CHAUBE BENAIK RAO Vs. PUTTAIN SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit on the basis of a mortgage-deed dated the 14 of November 1873. The deed in question was executed by Deota Prasad, his two nephews Raghubir Singh and Kure Lai and Mussammat Ugar Kunwar, the widow of his deceased brother Prag Dat. It was in favour of Jwala Prasad and Bansi Dhar, the predecessors-in-title of the present plaintiffs, the mortgage-deed was executed for a sum of Rs. 3,000 and was payable in ten years with interest at the rate of 13-annas 4-pies per cent, per mensem. Out of Rs. 300 due on account of interest, Rs. 200, if not paid within the next six months, were to be compounded after the expiry of each such period. We may also point out one of the covenants of the deed under which it was stipulated that each of the three sets of mortgagors would be entitled to redeem his share of the mortgaged property on payment of a proportionate share of the mortgage-debt.

(2.) There was a prior mortgage by conditional sale under which the two villages mortgaged under the deed of 1873 had also been mortgaged. It is an admitted fact that in the year 1894 the present plaintiffs, in whose favour the previous deed of 1871 had stood, obtained a foreclosure decree in respect of one of the two villages mortgaged under the deed of 1873. Accordingly, the present claim is confined to the remaining village.

(3.) The present suit was instituted on the 6 of August 1910, within the extended period of limitation. No written statements were originally filed, and it was decreed ex part on the 5 of June 1911. On the 16 December 1912 an application for setting aside the ex part decree was filed on behalf of all the representatives of the mortgagors, the principal defendants on the record, except Mahendra Singh, and the decree on that application was set aside. We may note here that Puttain Singh the present defendant-respondent, was treated at that stage of the proceedings as a minor and was represented by a guardian ad litem. After the decree had been set aside a written statement by four of the defendants was put in but ultimately the case was compromised and a compromise was filed in Court on the 18 November 1913. This compromise was incorporated in a decree dated the 19 November 1913. As against the other defendants the suit was heard and decreed on the merits. A final decree for foreclosure was passed on the 14 April 1917.