MADHORAO PAIKAJI Vs. EKNATHRAO BALAPPA

JUDGEMENT

(1.) THIS appeal arises out of a mortgage suit. Paikaji and his sons executed a mortgage on 24-5-1929 in favour of respondent 1, Eknathrao for Rs. 20,000. Four of his sons, Ghularam and others, defendants 1 to 4, were majors and executed the document as such. The other, three sons including the appellant, Madhorao defendant 5, were minors and the mortgage was executed on their behalf by their father Paikaji as their guardian. The consideration of Rs. 20,000 was stated to be for payment of antecedent debts to the creditors of the mortgagors to the extent of Rs. 16,000, Rs. 200 for the expenses of stamp and registration of the mortgage and Rs. 3800 for expenses of cultivation and for advance to agricultural servants. Interest was agreed to be paid at the rate of 0-14-0 per cent, per mensem and the entire amount together with interests was payable on 24-5-1934. In default of, payment of the amount due with interest on the due, date, the mortgage amount was payable at the rate of 1 per cent per mensem till realisation. The property mortgaged was 0-16-0 of Chaparda Ijara, tahsil and district Yeotmal. One of the terms of the mortgage was that the mortgagee had the option to sue either for foreclosure or for sale in default of the payment of the money due on the mortgage.

(2.) THE mortgagors paid Rs. 2000 to the mortgagee on 21-11-1929 and thereafter nothing was paid towards the mortgage. After the due date for payment had expired oh 24-5-1934, respondent 1, the mortgagee, filed civil Suit No. 8A of 1938 on 28-11-1938 in the Court of the Additional District Judge, Yeotmal, to enforce the mortgage dated 24-5-1929. Paikaji had died and his sons were impleaded as defendants 1 to 7 and his grandsons were impleaded as defendants 8 to 13. The grandsons were born subsequent to the execution of the mortgage. The plaintiff exercised the option which he had under the mortgage and claimed a decree for foreclosure in default of the payment of the amount due on the mortgage. Separate written statements were filed on behalf of the different defendants. The trial Court passed a preliminary decree for foreclosure on 30-1-1940. The date fixed for payment was 30-7-1940 and the amount payable inclusive of interest and costs was Rs. 31,524-8-8.

(3.) THE llearned Counsel for the mortgagee (respondent 1) raised a preliminary objection as regards the competency of the appeal. The first ground urged by him was that as no appeal had been filed by the mortgagors against the final decree for foreclosure, the appeal against the preliminary decree for foreclosure had become infructuous. The learned Counsel did not cite any authorities in support of his contention. Presumably, his contention was based on Calcutta cases which had been overruled in Taleb Ali v. Abdul Aziz and had not been followed in Abdul Sattar v. Bansgopal .