JOYKRUSHNA MAHAPATRA Vs. RADHAKRUSHNA MAHAPATRA

JUDGEMENT

(1.) This is a second appeal from an order refusing to a mortgagee a personal decree under Order 34, Rule 6. The mortgage in question is a simple mortgage by which certain property was given as security for a loan of Rs. 150 which was to bear interest at 25 per cent per annum. During the pendency of the mortgage the mortgagee had to pay the sum of Rs. 244 in order to save the mortgaged property from sale for arrears of rent. This amount was added to the principal money claimed as secured by the mortgage and was included in the decree. The mortgaged property realised on sale some portion of the mortgage debt and the mortgagee applied for personal decree for the balance. In the mortgage bond, after acknowledging receipt of the loan, the mortgagor says: After having the said amount in a year from this date, I shall take back the document.

(2.) He then goes on to stipulate that if he should pay by instalments, the payments shall be endorsed on the back of the bond, being appropriated first towards interest and then towards principal. If he defaults in repaying this amount, the lender will sue him for realisation of the principal and interests get the mortgaged property attached and sold and realise his dues out of the sale proceeds. The Courts below considered that the ambiguous form of the undertaking to repay in a year could not be properly regarded as a personal covenant for repayment of the loan. Mr. S.C. Chatterji on behalf of the appellants argues that the mere unqualified admission that a loan has been taken should be held to imply a promise to repay, and also that the correct reading of the stipulation regarding repayment in one year would imply an actual promise to make the payment by that time.

(3.) Regarding the second point, it is observed that the learned Munsif, who was himself an Oriya, interpreted these words as meaning: I take the loan promising to pay the amount with interest in a year from the date of the bond; but the learned Subordinate Judge considered that this interpretation of the Oriya was incorrect and that the stipulation merely was that when the amount was paid, the mortgage-bond would be taken back. On the question of the manner in which this Oriya expression should be translated, I would have accepted the decision of the learned Subordinate Judge as a finding of fact and would have treated this appeal as concluded by findings of fact had it not been for the decision of this Court in Chhathi Lal Sah V/s. Bindeshwari Prasad Sahu AIR 1929 Pat 605.