MAHIM CHANDRA GUHA Vs. NABA CHANDRA CHOWDHURY

JUDGEMENT

(1.) This appeal arises out of a suit to enforce a mortgage bond, The property belonged to the Defendant No. 12. On the 13 September 1916, he executed a conveyance of the property in favour of certain persons who are represented by Defendants Nos. 1 to 11; and on the same day those defendants executed a mortgage of the property to the plaintiff. On the 4th November 1916, the mortgagors executed a lease of a portion of the property for a term of three years in favour of the Defendant No. 12. The case of Defendant No. 12 is that though he executed the conveyance, there was an arrangement between him and the other defendants that the latter would hold the property in trust for him, borrow money to pay off his debts, and release the property to the Defendant No. 12 after the debts were paid off, and that as the defendant, as pleader, had conducted a number of suits for the plaintiff (among others a wakf case which lasted for about 90 days for which Rs. 9,000 was clue to him as fees), it was arranged that the amount due to Defendant No. 12 on account of his fees would be set off against the interest payable to the plaintiff on the mortgage. The Court below decreed the suit and the Defendant No. 12 has appealed to this Court.

(2.) So far as the execution and consideration of the mortgage bond are concerned, we must accept the finding's of the Court below upon the points, and no contention has been raised before us with regard to them on behalf of the appellant. With regard to the arrangement between the Defendant No. 12 and the Defendants Nos. 1 to 11 set up by the former, the Court below held that it was quite unnecessary to decide on what terms and conditions the conveyance was executed, and that it might be that it was executed under the circumstances spoken of by the defendant and the terms and conditions as between the defendant and the Defendants 1 to 4, and the predecessors of Defendants Nos. 5 to 11 were such as narrated by the defendant. But I cannot understand how that would affect the plaintiff's claim based on the mortgage bond, as the plaintiff was not privy to or acquiesced in the arrangement set up.

(3.) It is contended, however, on behalf of the appellant that the question whether there was an agreement to set off the interest on the mortgage against the fees alleged to be due to Defendant No. 12 has not been properly tried, and for this reason the plaintiff applied for commission for his examination at Rangoon. It was granted; and he was examined on interrogatories and cross-interrogatories. This was in January 1923. When the case became ready for hearing the defendant wanted to have the plaintiff examined in Court and summons was issued on him. It appears from the peon's report that he refused to accept the summons. The summons was served at Dhurung - his ordinary place of residence in the district of Chittagong. A number of petitions was subsequently put in by the Defendant No. 12 in the Court below praying that the plaintiff might be examined in Court. The last application was made on the 22 April, 1924. The Court thereupon ordered the plaintiff to appear before the Court if defendant deposits the costs of his travelling.