GIRIDHARI LAL RAY Vs. DHIRENDRA KRISTO MUKERJEE

JUDGEMENT

(1.) This is an appeal against a decree of the Subordinate Judge of Hooghly, dated 25 July, 1904, passed in a mortgage suit. The facts are these: The plaintiffs allege that on the 16th May, 1900, the defendants Nos. 1 to 4 deposited with them at Calcutta the title-deeds of a certain putni taluk, which had been advertised for sale, took a loan from them of Rs. 15,000 on a promissory note and paid off the arrears of the putni rent and stopped the sale on the 17 idem. The plaintiffs accordingly prayed for a mortgage decree against the property, as well as a personal decree against the defendants, who had executed the promissory note.

(2.) The suit was contested by the defendant No. 7, the Receiver of the property appointed by this Court on the 2 September, 1901, and by the defendant No. 8, in whose favour the defendant No. 7 had on the 11 May 1903 executed a mortgage of the property in question as well as of other property. The Subordinate Judge gave the plaintiffs a personal decree against the defendants Nos. 1 to 5 8nd 9, but disallowed their prayer for a mortgage decree. Hence the appeal.

(3.) The plaintiffs contend that they are entitled to a mortgage decree. I consider that on the evidence they are so entitled. The evidence on the plaintiffs side is unrebutted. It shows that on the 16 May, 1900, the principal defendants deposited the title-deeds of the putni taluk with the principal plaintiff at his guddi. They executed a promissory note for Rs. 15,000. The parties then adjourned to the plaintiffs attorney's office, so that there might be evidence of the payment of the loan. The attorney, Babu Gyanendra Narain Dutt, insisted that a fresh promissory note should be executed in his presence. This was done. It was signed by the defendants Nos. 3 and 4 for themselves and as executors of the estate of Chandra Kant Mukherjee.