MANAGI SINGH Vs. SAHEB RAM SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for the enforcement of a mortgage security executed by two of the appellants in favour of the plaintiffs-respondents on the 9 February 1899. In the Court of first instance, two questions were raised, namely, first whether the plaintiffs were entitled to enforce the covenant as to the payment of compound interest, and secondly, whether, the defendants were entitled to credit for a sum of Rs. 675 for which no deduction had been made in the plaint. The Subordinate Judge held, upon the first question, that the covenant for the payment of compound interest was enforceable and upon the second question, that the defendants were entitled to credit for a sum of Rs. 500 only. In this view of the matter, he made the usual mortgage decree and directed that after the date fixed in the decree for the repayment of the money, only the principal amount of the mortgage would carry simple interest at 6 per cent, per annum.

(2.) The defendants have now appealed to this Court and on their behalf the decision of the Subordinate Judge has been challenged on two grounds, namely, first, that they are entitled to credit for the sum of Rs. 175 disallowed by the Court below; and secondly, that the covenant for payment of compound interest was not enforceable. On behalf of the plaintiffs- respondents, the decree has been attacked by way of cross-appeal, on two grounds, namely, first, that the sum of Rs. 500 for which the mortgagors have been allowed credit was never paid as a matter of fact, and secondly, that interest after the date fixed for repayment ought to have been allowed not merely upon the principal sum secured by the mortgage, but upon the aggregate amount due on that date.

(3.) As regards the first question raised on behalf of the appellants, it is sufficient to say that we are not prepared to differ from the Subordinate Judge. The sum of Rs. 175 for which credit is sought, is composed of two payments, one of Rs. 100 and the other of Rs. 75. As regards the sum of Rs. 100, one witness testifies to the alleged payment but, as the Subordinate Judge observes, it is difficult to believe that the amount was actually paid under the circumstances stated. As regards the remaining sum of Rs. 75, it was paid not in partial satisfaction of the mortgage but only to enable the mortgagees to recoup themselves the costs they had incurred with a view to institute a suit to enforce the mortgage, which they abandoned at the request of the mortgagors, The learned Vakil for the appellants points out that the evidence indicated that a sum less than Rs. 75 had been actually spent by the mortgagees for the purpose. The evidence, however, upon this point, is contradictory and the deposition of one of the witnesses called by the mortgagors themselves certainly tends to show that very nearly Rs. 75 had been spent. We are, therefore, not prepared to disturb the decision of the Subordinate Judge upon the first point taken on behalf of the appellants.