CHHOTALAL KARUNASHANKAR Vs. NATHUBHAI DAJIBHAI

JUDGEMENT

(1.) This is an appeal against a decree of the First Class Subordinate Judge at Ahmedabad, in suit No. 345 of 1918, which was for redemption of a mortgage for Rs. 19,981, executed in 1877. The mortgage terms were that the mortgagees were to be in. possession of the share of the village lands mortgaged for fifty-one years, to take the rents for there interest, and to be repaid the sum secured or Expiry of the fifty-one years term. The mortgagees were also to expend Rs. 4,500 in improvements, for it appears that the land of the mortgaged share was then largely uncultivated, and to receive Rs. 4,251 as interest on the sum so expended. The mortgage amount was made up of Rs. 8,500 to be paid in satisfaction of an earlier mortgage decree, and of Rs. 2,600 paid in cash, the balance being the amount for improvements and its interest. When the previous mortgagee came to be paid off, it was found that Rs. 436-4-2 more were due, i.e., not Rs. 8,500 but Rs. 8,936-4-2, and the mortgagees paid this amount also. In consequence of later transactions between the parties, set out in the original Court's judgment, one and a half annas of the equity of redemption was transferred to the mortgagees. There was also a transaction by which eight years were added to the term of the mortgage in consideration of a further sum lent. But this has not been considered in the present suit as we think rightly. The suit being under the Dekkhan Agriculturists Relief Act, the contention that redemption could not be asked for before the term of the mortgage had elapsed was overruled, and for the same reason, though the mortgage did not provide for an account, one has been taken under Section 13 of that Act. Against the order that an account under the Dekkhan Agriculturists Relief Act should be taken, an appeal was made to this Court, as also against the order that interest should be calculated at nine per cent, on the amounts actually lent and spent by the mortgagees on improvements see-the judgment of this Court of December 8, 1919, and this Court decided that interest should be allowed at six Percent on the amount lent, while that on the amount spent on improvements and interest on it should be the fixed sums of Rs. 4,500 and Rs. 4,251 agreed on.

(2.) Accounts have accordingly been taken on this basis. The first Judge trying the case, who made the order of December 8, 1919, referred to Section 15-B of the Dekkhan Agriculturists Relief Act, and apparently intended later to avail himself of that section when the account was ready.

(3.) The Commissioner's first report was considered in 1926, and further directions were then issued to him, on September 13, 1926. A new Commissioner was appointed and he submitted a report, which was again considered, and further directions were issued to him on January 5, 1927. On his submitting a fresh statement, exhibit 235, a decree for redemption was made on January 25, 1927. This is the decree under appeal.