NAGESWARA AYYAR Vs. MLMRAMANATHAN CHETTIAR

JUDGEMENT

(1.) This is an appeal by the mortgagor, against a decree for sale passed in the mortgagee's suit. Only two points have been raised in the appeal: One relates to an item of Rs. 7,000, which formed part of the consideration recited in the mortgage bond; the other question relates to the rate t f interest.

(2.) The first question formed the subject of issue 6 and has been discussed pretty fully in para. 9 of the lower Court's judgment. Before the lower Court, the accounts showing a loan of Rs. 6,000 to defendant is mother were not available, as they were in the records of the High Court in a pending appeal. Defendant 1 did not deny the arrangement that the sum of Rs. 7,000 now claimed was to be utilised in discharge of the above debt due by his mother to the plaintiff. His only contention was that the plaintiff promised to satisfy him that such a debt was really due from the mother by the production of the accounts, but that he had not done so. We are not prepared to accept his statement that he felt any doubt about the truth of the mother's indebtedness, though technically he is entitled to the proof of it by the production of the accounts. Whatever strength there was in this contention, in the Court below, it ha i now been shown to be unfounded. The accounts have been called for from the records of the other case and after their production, the appellant's learned Counsel has not gone the length of denying the fact of the debt due by the mother to the plaintiff but merely raised a point that Rs. 200 or Rs. 300 out of the Rs. 7,000 might have remained after the discharge of the mother's debt. No such point was raised before the Court below and there is an incidental atatement in the evidence of P.W. 2 that the balance that remained after the discharge of the mother's debt, w's paid over to defendant 1. In these circumstances, we see no reason to differ from the conclusion arrived at by the lower Court on this point.

(3.) The second question, as to interest, arises under the following circumstances: The mortgage deed Ex. A provides for repayment of the principal in a year's time. Interest was fixed at Re. 1-8-0 per cant, per mensem and was made payable once every six months.