LAXMIBAI Vs. HUSSAINBHAI

JUDGEMENT

(1.) In this suit a decretal order of reference to Commissioner was made on the 7th November 1913 to take the following accounts, viz., an account of what was due by the plaintiffs to the defendant for principal and interest on the mortgage mentioned in the pleadings on the basis of the findings on the issues therein from 23rd October 1880 and it was directed that in such account the defendant should be debited with all the rents and profits accrued from the property mentioned in the pleadings and the sale proceeds of any machinery or building materials sold by him and be given credit for all costs and expenses properly incurred by him in maintaining the said property or working the said mills.

(2.) The first defendant died after the said order was made and the present 6th and 7th defendants are the Receivers appointed in Suit No. 936 of 1914 for administration of the estate. The Receivers brought in an account of the mortgage debt and filed it before the Commissioner., The account showed a balance of Rs. 16,73,072-2-0 due to the estate. The plaintiffs filed objections which amounted to Rs. 21,90,392-2-1. Out of these objections against the original defendant having paid ground-rent in respect of the mortgage property alone amount to Rs. 3,69,492-8-0. Objections against the payment of insurance premia amount to Rs. 30,467-8-3.

(3.) The 6th and 7th defendants objected to the Commissioner hearing these objections on the ground that there was no dispute as to the amount paid by the original defendant by way of rent and insurance and the question whether the original defendant could have credit for the payments was a question wholly of law or of mixed law and fact and should be determined by the Judge who tried the case.