RAJ MOHAN DAS Vs. SARADA CHARAN CHOUDHURY

JUDGEMENT

(1.) This rule has been obtained by the defendant in a suit instituted in the Court of Small Causes at Patiya for recovery of mesne profits from November 1931 to November 1934. This suit was filed on 5 December 1934. The question involved in this Rule is whether this claim is maintainable in law. On 15 April 1917 Nobin Chandra Chowdhury and three other persons, who may be called the Chowdhurys, executed a mortgage for a sum of Rs. 100 in favour of Tarini Charan Dass (since deceased), the father of the petitioner. The mortgagee was given possession, the stipulation in the bond being that the usufruct of the property mortgaged would be taken in lieu of and in complete satisfaction of the claim for interest. Tarini accordingly went into possession and remained in possession of the mortgaged lands till November 1934. The opposite party, Sarada Charan Chowdhury, purchased in execution of money decree the interest of the Chowdhurys in the mortgaged land, and deposited in Court the mortgagee's dues on 12 December 1930 under the provisions of Section 83, T. P. Act. Notice of the deposit was served on Tarini Charan Das, the mortgagee, by the Court on 25th December 1930. Tarini did not withdraw the money nor did he deliver possession to the opposite party.

(2.) Thereafter the opposite party instituted a suit against Tarini Charan Chowdhury being No. 200 of 1932. In the suit he prayed for a declaration that by his aforesaid deposit the mortgage had stood redeemed, for recovery of possession of the mortgaged property and for a reconveyance from the mortgagee. The Chowdhurys did not appear but Tarini appeared and contested the suit. Besides challenging the title of the opposite party he pleaded that the plaintiff in the suit was not entitled to any of the reliefs claimed by him without paying him money due on another simple mortgage executed in his favour by the Chowdhurys for Rupees 2,500. The pleas taken by Tarini were overruled by the learned Munsif. The material part of the decree passed by the Munsif is as follows: That it be declared that the plaintiff has the right to redeem and he do get khas possession; that defendant 1 (Tarini) do execute within three months from this date a reconveyance in favour of the plaintiff.

(3.) Tarini preferred an appeal (No. 66 of 1934). One passage in the judgment-pronounced in the said appeal is material and in my judgment the learned Small Cause Court has gone wrong by misjudging the effect of the said passage in the said judgment. The said passage is as follows: I have been asked by the defendant-appellant to give him six months time more. In view of my finding that the plaintiff is not liable to redeem the simple mortgage for Rs. 2,500 for this and other lands and defendant may be put to further trouble, he may be allowed to take the paddy grown on the land by him; so I allow him time till Aughrayan 1341 B.S. (November 1934). The suit is decreed with costs. The mortgage is declared to be redeemed by the deposit and notice. Plaintiff do get khas possession of the mortgaged property by the end of Agrahayan 1341 B.S.