SINGHESHWAR SINGH Vs. MEDNI PRASAD SINGH

JUDGEMENT

(1.) This is an appeal by defendants 1, 2, 3, 4, 5 and 6 who are the mortgagors and are appellants 1, 2, 4, 5, 6 and 7 in this Court, as well as by defendant 27, who is a subsequent mortgagee, against the decision of the learned Sub-ordinate Judge of Monghyr dated 26 February 1936, decreeing the suit which was instituted by the plaintiffs-respondents to enforce a mortgage bond dated 31st August 1922 in the following circumstances: On 27 April 1906, the father of the principal appellants, who will be hereinafter referred to as the mortgagors, executed a mortgage bond in favour of the plaintiff and his sons to secure a sum of Rs. 800. A sum of Rs. 200 was paid back later on by the mortgagor to reduce his liability but the major part remained unpaid.

(2.) On 11 October 1912 the mortgagors executed another mortgage bond in favour of the same mortgagees to secure a sum of Rs. 1391 stipulating to pay compound interest at Rs. 1-2-0 per cent, per mensem. The amount due under the earlier bond had come up to Rs. 1241 and a sum of Rs. 150 was taken in cash by the mortgagors. On 29 May 1916 the mortgagors executed another mortgage--a usufructuary mortgage--for a sum of Rs. 900 in favour of defendant 27, an appellant before us. The property covered by this usufructuary bond is included in the properties given in the mortgage, of the earlier bond of 1912. The mortgagee of 1916 paid the sum of Rs. 900 to the earlier mortgagee as stipulated in the mortgage of 1916. On 5 August 1920, the mortgagors gave a sudhbharna to the plaintiffs for a sum of Rs. 1500, some property which was also given in security in the earlier bond of 1912. This bond is Ex. 3, and by it the mortgagor stipulated to pay the whole amount of Rs. 1500 in one lump sum in Baisakh 1334; the possession of the mortgaged properties was for a fixed period of seven years.

(3.) The amount of Rs. 1500 was arrived at by calculating the dues of the mortgagee of this bond under another bond of Rs. 888 and the balance of Rs. 612 was paid in part payment of the liability under the bond of 1912 which is Ex. 2 in the case. On 31 August 1922 the mortgagors again executed! a mortgage bond, the bond in suit, for Rs. 2000 stipulating to pay interest at 13 annas per cent per mensem to be compounded. The whole of the amount secured by this document was the balance then due under the bond of 1912. In this bond, which is Ex. 2(a) in the case, it is stated that the amount of Rs. 2000 is the balance of the principal and interest after deduction of the payment towards the bond of 11 October 1912, that the bond is being executed on account of previous dues and the amount will be paid on 30 Baisakh, 1330 fasli.