MIDNAPUR ZEMINDARY COMPANY LIMITED; ABINASH CHUNDRA MITRA Vs. ABINASH CHUNDRA MITRA; SRIMATI PROMODINI DASI

JUDGEMENT

(1.) The first of these appeals (No. 501 of 1914) is an appeal by the Company (defendant No. 14 in the suit), against that part of the decree of the Subordinate Judge of Midnapur, dated the 15th July 1914 passed in Civil Suit No. 13/378 of 1913, which declares that the sum of Rs. 5,521-2-9 and Rs. 447, proportionate costs, are a charge over 5/9ths of the tenures set out in the 3rd Schedule (Schedule Ga) to the plaint. The second appeal (No. 505 of 1914) is an appeal by the plaintiffs in the suit against that part of the decree which disallows a portion of their claim. The respondents in Appeal No. 501 who appeared were the defendants Nos. 11, 12 and 13 and the plaintiffs, and in Appeal No. 505 the defendants Nos. 11,12,13 and 14.

(2.) After Appeal No. 505 was opened the learned Vakil for the plaintiffs-appellants stated that he did not desire to press the appeal and this appeal accordingly stands dismissed. We make no order as to costs in this appeal.

(3.) Before dealing with the points raised by the appellants in Appeal No. 501, it is necessary to state shortly the material facts. The suit out of which this appeal arises was a suit to enforce a mortgage bond, dated the 5th February 1900, executed by Ram Chand Dutt and the defendant Umesh Chundra Dutt in favour of one Kartik Chundra Mitter. The advance stated in the bond is Rs. 4,000 and the executants covenant to pay interest at the rate of Re. 1-4-0 per mensem from the date of the mortgage until realization. The mortgage states that the executants received the Rs. 4,000 according to the schedule, which contains a memorandum of the consideration setting out the numbers of the currency notes in the presence of the Sub- Registrar. The Rs. 4,000 and interest were secured by an hypothecation of certain properties set out in schedules Ka and Kha thereto, which are stated to be subject to certain incumbrances set out in the mortgage bond, including as regards some of the properties a mortgage bond, dated the 16th September 1889, in favour of the mortgagee Kartik. At the foot of Schedule Kha is a statement by the executants that their shares and rights in the properties mentioned in the schedules were mortgaged.