ISHWAR DAYAL DUBE Vs. GYAN SINGH

JUDGEMENT

(1.) The facts are fully set out in the referring order. Gyan Singh, respondent, had executed three deeds of simple mortgage in favour of the plaintiff appellant on 8- 11-1928, 13-12-1930 and 22-6-1931. The total amount borrowed under these three deeds was Rs. 1,600. In the year 1933 the plaintiff appellant filed a suit, No. 350 of 1933, on foot of the three mortgages and prayed for a decree for sale. The suit was decreed on 11-12-1933. The decree-holder found that there was a prior mortgage dated 17-2-1928, executed by the defendant respondent Gyan Singh in favour of Larhaiti Lal. This mortgage was for Rs. 1,400 with interest at 9 per cent, per annum. The amount was payable within eighteen months from the date of the mortgage.

(2.) As the property was not likely to fetch proper value if it was sold subject to the first mortgage, the plaintiff appellant decided to deposit the amount due to the first mortgagee, Larhaiti Lal, and he made a deposit of Rs. 2,825, the full amount due to the mortgagee, on 6-1-1934, under Section 83, Transfer of Property Act. Larhaiti Lal accepted the money and the first mortgage was thus redeemed.

(3.) The suit out of which this appeal has arisen was filed on 1-8-1942, in the Court of the Munsif of Kanauj being suit No. 266 of 1942, for the recovery of the sum of as. 2,325 with interest thereon by the enforcement of the charge. The defendant mortgagor Gyan Singh, raised several objections. It is, however, necessary to mention only three of them now.