JANGUMIYA SULEMAN MADIWALE Vs. HASHAMSAHEB

JUDGEMENT

(1.) This is an application in revision against an order passed by the District Judge at Belgaum directing the plaintiff-applicants to pay ad valorem court-fee on Rs. 9,000. The fee that was ordered to be paid by the Court was not paid, and the appeal was, thereupon, rejected for non-payment of court-fees.

(2.) In this case the plaintiffs filed a suit to redeem, along with defendants Nos. 9 and 10, as heirs and legal representatives of the original mortgagor, a mortgage for Rs. 1,000 in favour of defendant Nos. 1 to 8 effected on January 1, 1896. The mortgage was a usufructuary one. The plaintiff filed the suit for taking accounts of the mortgage and for redemption.

(3.) The suit was resisted on several grounds. It was contended by the defendants that the suit was barred by the decree in Suit No. 15 of 1908. They also contended that they had effected several improvements and were entitled to get credit there for in taking accounts. But the principal contention was that while they were in possession of the suit property as mortgagees, they had to pay Rs. 4,000 to save the property from being sold in execution of a decree in respect of a prior mortgage. They, therefore, contended that they were entitled to get credit for that amount and interest thereon under Section 72 of the Transfer of Property Act. When the suit came up for trial, the defendants did not press that the suit was barred by res judicata and also gave up their contention in respect of the improvements and the expenses of litigation. The plaintiffs admitted that Rs. 1,000 were due to the defendants under the suit mortgage, and that, therefore, there was no necessity for taking accounts. But in respect of the main contention of the defendants, the learned trial Judge came to the conclusion that the plaintiffs and defendants Nos. 9 and 10 were bound to reimburse defendants Nos. 1 to 8 in respect of the amount that they spent for preventing the property from being sold in execution of a decree obtained in respect of an earlier mortgage; and ultimately the learned trial Judge passed a decree in the following terms: The plaintiffs and defendants Nos. 9 and 10 do pay Rs. 10,150 with costs of the suit and future interest at 6 per cent on Rs. 5,000 from the date of the suit till satisfaction to defendants Nos. 1 to 8 within six months from to-day. On their doing so, the defendants shall deliver up to the plaintiffs and to defendants Nos. 9 and 10 all documents in their possession or power relating to the suit mortgaged property described in the schedule to the plaint and shall further transfer possession of the suit property at plaintiffs cost free from the mortgage encumbrances. On the failure of the plaintiffs and defendants Nos. 9 and 10, defendants Nos. 1 to 8 may apply for a final decree.