DURGA SINGH Vs. KESHO LAL

JUDGEMENT

(1.) This is an appeal from a decision of Rowland J. in a suit brought by the respondents to recover a certain sum of money from the appellants. The suit was decreed by the trial Court, but was dismissed on appeal by the lower Appellate Court. Rowland J. has in second appeal set aside the judgment of the lower Appellate Court and restored the judgment of the trial Court. The defendants first party who contested the suit have accordingly preferred this appeal under the Letters Patent. The circumstances which gave rise to this litigation may be briefly stated as follows: On 6 November 1923, defendant 11 executed a zarpeshgi lease in respect of a seven pies share in Mauza Bahpuri Majurahi in favour of the appellants (defendants first party). On 10 November 1928, he mortgaged the same property to defendant 12 for a sum of Rs. 1000 and on 13 October 1932, he borrowed a sum of Rs. 330 from the latter by executing a hand-note in his favour. On 23 June 1933, he sold to the appellants the property already mortgaged to them and defendant 12 for a sum of Rs. 5000.

(2.) It was recited in the sale-deed that out of the total sum of Rs. 5000, Rs. 2125 had been set off against the mortgage debt due to the vendees on the basis of the mortgage dated 6 November 1923, and a sum of Rs. 2227 had been left in deposit with them for the purpose of paying off the mortgage dues of defendant 12. The balance of the consideration money, namely Rs. 648, was paid in cash. As the debt due to defendant 12 from defendant 11 on the hand-note was not paid by the appellants, defendant 11 had to borrow a sum of Rs. 450 from the plaintiff for the purpose of paying it off and on 28 January 1935, in consideration of the advance made by the plaintiff to him he executed a registered deed (Ex. l) by which he assigned to him (the plaintiff) his right to realize a sum of Rs. 500 from the appellants.

(3.) It was recited in the deed of assignment that the sum of Rs. 2227 which had been left with the vendee represented the total sum due on the date of the sale to defendant 12 from defendant 11, both on the mortgage bond dated 10th November 1928 and the hand-note dated 13 October 1932. It was also stated that by mistake the dues under the hand-note had not been mentioned in the sale-deed though the understanding between the parties was that this debt should also be paid off out of the money left with the appellants.