CHAMROO SAHU Vs. GBSTEPHEN

JUDGEMENT

(1.) This is a plaintiffs second appeal in a suit for redemption of a mortgage and for recovery of Rs. 745-5 being the amount due to them from the defendant as per account given in the plaint.

(2.) The plaintiffs case was that the mortgaged property, a house, was mortgaged with possession by them to the defendant for a sum of Rs. 2500 by a registered mortgage bond dated 5-4-1985. Out of the consideration money Rs. 1000 only was paid at the execution and the balance, it was stipulated, was to be paid in October 1935, in default whereof the plaintiffs mortgagors would be entitled to realise it with interest at one per cent per month, but the defendant did not pay the amount though he continued to be in possession of the house. The plaintiffs, therefore, claim that by adjusting the proportionate amount of rental of the house that would have gone to satisfy the stipulated interest on the principal sum of Rs. 1500, had that been paid, against the principal sum of Rs. 1000, it is found that after satisfying the mortgage money a balance of Rs. 745/5, as claimed by them would be due to the plaintiffs. On this basis, the plaintiffs claim that it should be declared that the mortgage dues having been fully satisfied, the mortgage stands redeemed; that they should be put in possession of the property; and besides, the defendant should be ordered to pay them Rs. 745/5 being due to them as above, being the amount due in respect of rent of the house for the period for which the defendant was in occupation after the satisfaction, resulting in redemption, of the mortgage.

(3.) The plaintiffs claim is resisted by the defendant on the ground that the balance of consideration for the bond, that is, the sum of Rs. 1500 was duly paid to the plaintiffs on 25-9-1935, and in acknowledgment thereof, plaintiff 1 granted a receipt. It was, hence, contended that the plaintiffs claim for redemption was without any foundation and that the suit was premature inasmuch as according to the terms of the mortgage bond it was to expire not before April 1945, the present suit having been instituted on 21-9-1942.