ZAKI-UL-DIN Vs. CHUNNILAL

JUDGEMENT

(1.) ALL references to the various intermediate transfers of interest that took place may well be omitted as irrelevant. Without them the facts are these. The plaintiffs mortgaged a village with the defendants for Rs. 1,500, agreeing that the defendants should hold possession in lieu of interest, and the mortgage should be redeemed on payment of the Rs. 1,500. The mortgagees were in possession when the mortgagors deposited Rs. 1,500 in Court on the 25th March 1918, in satisfaction of the mortgage. This tender was refused, and the mortgagors accordingly filed a suit for redemption, in which it was apparently held that the payment of Rs. 1,500 on the 25th March 1918, had redeemed the mortgage. Nevertheless a preliminary decree was issued on the 21st May 1920, allowing six months for redemption, and a final decree declaring the mortgage redeemed was passed on the 25th of January 1921. The mortgagors were formally put in possession by the Court on the 23rd February 1921.

(2.) THE want of thought and care revealed by this meaningless procedure had appeared before even the preliminary decree was passed. In their plaint the mortgagors claimed such profits as the mortgagees had made out of the village after the date on which they had refused to allow redemption on payment of Rs. 15,00, that is the 25th March 1918. It was then the duty of the Court to ascertain what those profits were and to pass a final decree for redemption on payment to the mortgagees of the Rs. 1,500 in deposit minus the amount of those profits. Instead of doing that the learned Judge said at the end of his judgment: Plaintiff is given permission to file another suit for his surplus profits if any.

(3.) IN the first Court it was found that the profits of each of the first two of the three years amounted to Rs. 600, and that the defendants were not liable to pay those of the third year, ,because the plaintiffs had actually taken possession of the village shortly after the passing of the meaningless preliminary decree for redemption in May 1920, and had themselves realized the profits of that third year, though they had gone through the formality of getting themselves put in possession by the Court in February, 1921. They contest the correctness of this last finding in this Court, which it is open to them to do, as there is no decision on the point in the judgment of the lower appellate Court. But the evidence against them is overwhelming, consisting mainly of the statements of their own witnesses, and it is now found on that evidence that they took possession of the mortgaged property in or about June, 1920.