GANGASARAN SAHU Vs. BINDESRI NAIK

JUDGEMENT

(1.) THE late Bhairon Naik, and his son and heir Bindesri Naik, who is the present appellant, on August 21, 1875, executed a mortgage, in the form of a conditional sale, in favour of the deceased Debi Parshad, who is now represented by the respondents Ganga Saran Sahu and Ram Saran Sahu, and of the other respondent Goshain Moti Gir. By the terms of that deed the mortgagors acknowledged "that the sum borrowed is Rs. 8997 in cash of the current coin; that interest shall be paid on this sum at R. 1-8 per cent, per mensem"; and that they had in lieu thereof given a conditional mortgage of the entire village of Ramnagra, and of certain other shares of lands (which need not be enumerated) "for a term of two years from this day, engaging to redeem the mortgaged shares by paying the entire amount in a single sum within or at the time stipulated." The deed provided that, if they should fail to pay the principal money at the time stipulated, the mortgage of the shares should in lieu of that money only be foreclosed; and they should every year pay the interest; and that on default of payment of interest at the end of the year, "the creditors shall be at liberty to treat it as principal, and to recover it with interest thereon from our person and our other property, and also from the property mortgaged."

(2.) BY a second deed of mortgage by conditional sale, dated May 3,1876, which recites the previous deed of August 21,1875, the appellant and his father borrowed from the same lenders "another sum of Rs. 2997 of the current coin, engaging to pay interest thereon at R. 1-8 per cent, per mensem; that we tack this money on to the conditions of the former deed of mortgage by conditional sale, engaging to pay it with the amount of the said former deed; that on default of payment of the amount of the former deed or of this one, according to the terms of the former deed, the mortgage of the said shares shall, in lieu of the amount of both deeds, be foreclosed, and the sale shall become absolute."

(3.) ON September 3, 1879, the creditors filed an application stating that they had received two sums, together amounting to Rs. 7452, from two persons, one of whom had purchased the entire village Ramnagra, and the other the 8-anna share of Mauza Tina from the mortgagors. They accordingly prayed that Rs. 7452 should be deducted from the sum claimed in their original application; that the village Ramnagra and the 8-anna share of Mauza Tina should be exempted from foreclosure; and that the remaining property of the mortgagors should be held liable to foreclosure for the balance of the amount originally claimed by them. The assent of the mortgagors to the application is attested by the signature of the judge.