SM NATHUNI SAHUAIN Vs. DHARANIDHAR JHA

JUDGEMENT

(1.) This is an appeal by the defendants from the decision of the Subordinate Judge in an action brought on two mortgages. The first was dated 9 April 1924, for a consideration of Rs. 2,000, and the second 18 September 1926, the consideration being stated as Rs 7,000. In the first mortgage property No. 1 of the Schedule to the plaint was mortgaged. In the second mortgage that same property together with other properties were provided as security for the mortgage moneys.

(2.) The defences raised by the defendants in the Court below were first that as regards the mortgage of 9 April 1924, the consideration had been inaccurately stated that whereas it was stated as Rs. 2,000, in fact the amount advanced was Rupees 1,000 only. That point can be disposed of by stating that the learned Judge in the Court below has come to the conclusion that the consideration was stated correctly in the deed and that Rs. 2,000 was in fact paid. There is no appeal as regards that and therefore it can be dismissed from our consideration. As regards the second mortgage of 18 September 1926 for Rs. 7,000, the Judge has come to the conclusion that the money actually advanced was Rs. 6,172-12-0. The arrangement made by the parties was that the consideration should be left with the mortgagee for the payment of certain debts and the decision of the learned Judge was that in pursuance of that agreement the debts were in fact paid to the amount mentioned above. Certain payments alleged to have been made by the mortgagee had been disallowed and there is no cross-appeal with regard to this.

(3.) The sums actually advanced by the mortgagee on this mortgage by way of payments to the mortgagors creditors have been found to be Rs. 1,689 paid on 27 August 1928 and Rs. 2,700 paid on 20 December 1926. It will therefore be seen that as regards the latter sum the mortgagee took about three months to pay the creditor and in the case of Rs. 1,689 a period of two years. As a matter of fact by the time the Rs. 1,689 was paid by the mortgagee the amount had increased, on account of interest, to a sum of Rs. 2,040. But again no point arises with regard to that except an incidental question with which I shall in a moment deal. The learned Judge in the circumstances has made a decree for a sum of Rs. 11,000 odd, principal and interest, and a decree for sale of all the properties, the subject matter of the mortgage.