BRIJ BEHARI LAL Vs. MTAMIRUNNISSA

JUDGEMENT

(1.) On 7 August 1912, Chaudhri Husain Ahmad mortgaged a 4-pies share in mahal Amirunnisa, village Bangarmau, in the district of Unnao to the applicant in lieu of a sum of Rs. 1000 at 9 per cent. per annum. Interest on this deed was paid regularly but the principal sum due under the loan remained outstanding and on 16 February 1929, a fresh mortgage deed was executed by Chaudhri Husain Ahmad in respect of the same sum of Rs. 1,000. The interest stipulated in the new deed was also 9 per cent. per annum.

(2.) Chaudhri Husain Ahmad died leaving the opposite parties 1 to 3 as his heirs. The said opposite parties applied under Section 12, U.P. Agriculturists Relief Act alleging that the entire mortgage debt had been satisfied. They claimed the benefit of Section 9, Debt Redemption Act. The trial Court calculated the amount due on the mortgage deed allowing interest at the rate of 41/2 per cent. per annum and it found that nothing remained due. It accordingly allowed redemption without any payment.

(3.) The mortgagee appealed and the learned District Judge of Unnao agreed with the findings of the trial Court and dismissed the appeal. The mortgagee has now come up in revision and his learned advocate has contended that the procedure adopted by the Courts below has in fact amounted to ordering a refund of the amount already realised by the mortgagee as interest. The contention is that the money paid by Chaudhri Husain Ahmad and his heirs was paid as interest and was taken by the mortgagee as such. The method of accounting adopted by the lower Courts has resulted in effect in taking back this money and crediting it towards the principal. It is contended that in view of Sub-section (4) of Section 9, U.P. Debt Redemption. Act this was not permissible. In support of this contention reliance is placed upon P. Ramalakshmi and Ors. V/s. D. Gopalakrishnarao .