RAMJI LAL Vs. ROSHAN SINGH

JUDGEMENT

(1.) A Bench of this Court, of which one of us was a, member, remitted the following issue to the lower Court for finding: what amount, if any, is due to the defendant-mortgagee from the mortgagors on the basis of the mortgage deeds dated 21 July 1880 and 27 July 1882.

(2.) For the detailed circumstances in which it was found necessary to have a finding on the above issue the remand order should be seen. For the purposes of our decision on the issue remitted to the lower Court whose finding is before us, it is necessary to state the facts very briefly. The defendant-respondents were mortgagees of a 12-? biswansi share in a certain village under the deeds, one of 21 July 1880, and the other of 27 July 1882. The plaintiffs took a mortgage of the same share together with another share under a deed of a subsequent date. The defendant obtained a decree for sale on foot of their mortgages in 1886, and purchased the share themselves in execution of their decree. They obtained possession of the property and have been in possession ever since. They had omitted to implead the plaintiffs as a party, and the latter therefore were not bound by the result of that suit. The plaintiffs subsequently brought a suit on foot of their mortgage and had the same property sold. They were themselves declared to be the auction-purchasers in 1916. The suit, which has given rise to this appeal, was brought by the plaintiffs on 15 May 1928, for redemption of the mortgages in favour of the defendants, to which reference has already been made. It was alleged that the mortgage money due under the aforesaid deeds has been fully satisfied by the usufruct of the share which has been in possession of the defendant since 1886. The defendants denied this allegation and claimed a certain sum as a condition of redemption. They alleged that they were entitled to the entire decretal amount, with interest up to date. This Court held by its remand order that the plaintiffs were bound to pay to the defendants the amount due under the two mortgages. The issue remitted to the lower Court accordingly mentioned the question arising between the parties.

(3.) The lower Court has returned a finding which is not quite definite. It is pointed out that the defendants claimed by their written statement Rs. 1,926-2-6 which represent the mortgage money due under the two deeds on the date of the decree passed in their favour They claimed no interest subsequent to the date on which possession was delivered to them. They seem to imply that the plaintiffs should pay the same amount for redemption now as they would have had to pay if they had been impleaded and desired to redeem. The lower Court is however of opinion that, but for this defence the defendants would have been entitled to a larger sum of money representing the decretal amount above referred to and interest thereon up to date, the total of which comes to Rs. 6,457-12. Apparently the lower Court has left it to us to decide whether one or the other of the two figures should be considered to be the sum due under the two mortgages.