HURRYBUX DEORA Vs. JOHURMULL BHOTORIA

JUDGEMENT

(1.) In this case the appeal has been set down for hearing on a preliminary point. In 1911 the plaintiff executed a mortgage of the suit lands to the defendants whom he put in possession and empowered to realize rents from the tenants. In 1915, the plaintiff claimed to redeem the mortgage. There was a dispute as to the amount due thereunder and on 11 February 1916 the plaintiff filed his suit for redemption of the mortgage and possession of property. It appears that under an order made on 17 March 1916, the plaintiff paid to the defendants Rs. 43,000 and the defendants made over possession of the property to the plaintiff. On 17th May 1922, it was referred to the Assistant Referee to take the mortgage account on the basis of wilful default and neglect and after protracted proceedings before the Assistant Referee, he reported that the defendants were liable to pay to the plaintiff Rs. 38,918. The defendants filed exceptions to this report and ultimately Page, J. allowed certain of the exceptions and disallowed certain others. On 19bh September 1928 a decree was passed in favour of the plaintiff for Rs. 12,946-4-3 with certain costs. The decree continued: And it appearing that there is now in the hands of the Registrar of this Court standing to the credit of the account in this suit 3 1/2 per cent Government Promissory Notes of the face value of Rs. 60,000 deposited by the defendant Sobha Chand Bhutoria as security under an order made in this suit dated 25 November, 1924, it is further ordered and decreed that the said Registrar do out of the said sum in his hands pay to the plaintiff the said sum of Rs. 12,946-4-3 and to the defendants the balance thereof.

(2.) Under this decree the plaintiff has drawn out of Court Rs. 12,946-4-3 and has brought this appeal to establish his right to the balance of the amount found by the Assistant Referee to be due to him as also for certain costs not awarded to him by the decree. The defendant Sobha Chand Bhutoria has filed a cross-objection disputing the amount found to be due by the decree.

(3.) As the matters in controversy concern a voluminous and protracted account, and as the defendants desired to take a preliminary objection to the competency of the appeal, this Court ordered the appeal to be set down for hearing on the preliminary point.