AMARSINGH GAJJANSINGH Vs. TULSIRAM RAMDAYAL

JUDGEMENT

(1.) THIS is a first appeal against the preliminary decree passed by Mr. Pooran Chander, Subordinate Judge, first class, Jubbulpore, in civil Suit No. 2-A of 1942, decided on 5th October 1942.

(2.) THE defendants are the appellants here and the plaintiffs have also filed a cross-objection. This judgment will dispose of both the appeal and the cross-objection.

(3.) ON 6th October 1930, the defendants borrowed a sum of Rs. 2000 on the security of some property which they mortgaged with the plaintiffs. Exhibit P-2 is the mortgage bond. It was agreed by the mortgagors that the amount would be repaid in two years, otherwise the property would stand foreclosed. The mortgagors further agreed to leave the money with the mortgagees. With this money, a Sarkat Babi account was opened on which the mortgagors were entitled to operate. In the mortgage bond it was agreed that the interest would be payable only on the sums due on the Sarkat Bahi account, though it was stated that the transaction under the mortgage would also continue. In the year 1937, the plaintiffs brought a suit (civil Suit no. 45-B of 1937 in the Court of first Subordinate Judge, Second class, Jubbulpore) on the Sarkat Bahi account and claimed Rs. 1925. That suit was dismissed and the appeals filed against the judgment and decree were also dismissed. The judgment of this Court on second appeal from that suit is Ex. P-1. Niyogi J. held in that judgment that the Sarkat Bahi account was not independent of the mortgage and the suit brought on it was incompetent. He therefore confirmed the decree of the trial Judge dismissing the plaintiffs' suit.