NANDLAL Vs. AMBOPRASAD

JUDGEMENT

(1.) THE main facts of the-present mortgage suit are clear from the lower Court's judgment and it is unnecessary to repeat them at length here. The present four appellants are the minor sons of defendants 1 and 2, Dayal and Dharamraj, the executants of the mortgage deed in suit, and the main question which has been agitated on appeal concerns, in the present case, the effect and interpretation of para. 11, Schedule 3, Civil P.C. Under the mortgage deed, a large amount of property specified in para. 3 of the plaint was hypothecated including some six village shares. It is common ground between the parties to this appeal that, at the time of execution of the mortgage deed, two parcels of property hypothecated, viz., a two anna eight pie share in mouza Jolwadi and a one anna four pie share in mouza Wadhona, were under the Collector's management in execution of a money decree. The Additional District Judge held that the mortgage was, in the circumstances, void as regards these two village shares but valid as regards the rest of the property included in the mortgage deed. It is this view which has been strenuously contested on appeal.

(2.) THE advocate for the appellants has suggested that, in view of the phraseology of para. 11, Schedule 3, Civil P.C., it necessarily follows that the mortgage deed was as a whole void. In this connexion we have been referred to the words: so long as the Collector can exercise or perform in respect of the judgment-debtor's immovable property, and we have bean asked to hold that it is immaterial whether, as a matter of fact, the Collector had attached the whole of the immovable property or had only attached, as was in reality the case, two parcels out of that property. It has been suggested in this connexion that the decision of Kotval, A.J.C., in Gangaram v. Ramgopal A.I.R. 1922 Nag. 243, does not, in reality, decide the question at issue in this case, but the remarks of the learned Judge at p. 133 thereof clearly do not support this contention. Similarly the decision of their Lordships of the Privy Council in Gaurishankar Balmukund v. Chinnumiya A.I.R. 1918 P.C. 168, is in no way conclusive of this question in the direction suggested on behalf of the appellants. A reference to the judgment of Batten and Stanyon, A.J.C's., in Gaurishankar v. Chinnumiya First Appeal No. 15-B of 1912, decided on 20th April 1913, will show that these learned Judges took precisely the opposite view from that which has been urged here for our acceptance. A. similar view was taken by Batten, A.J.C., in Seth Laxmichand v. Mt. Chitiabai First Appeal No. 2 of 1915, decided on 11th May 1916, and we agree with his conclusions in this connexion. We are of opinion, however, that the reasoning of Baker, J.C., and Hallifax, A.J.C., in their judgment, in Baliram Singh v. Mohammad Abdul Sattar First Appeal No. 118 of 1922, decided on 31st January 1924, is conclusive on this point and we propose to reproduce here the essential part of that judgment:

(3.) THE next point urged is that the rate of interest stipulated for in the mortgage deed was unconscionable or penal and should be relieved against. The terms in question were that the debt was to be repaid in four years with compound interest at, Rs. 1-2-0 per cent per mensem. The interest was to be payable year by year during these four years. No authority whatever has been produced in favour of this contention. The rate of interest is by no means an exceptionally high one and we can find no ground whatever for interference in this matter.