Decided on July 15,1953



Mohapatra, J. - (1.) This First Appeal is against the judgment and decree dated 27-4-1948 of Sri R.C. Misra, Subordinate Judge of Berhampur, and is brought by the creditor (defendant 1), the Court having allowed relief under the provisions of Section 10, Orissa Money-Lenders Act in favour of the plaintiffs. Defendant 3 (Ghanosyamo Sahu) was the original debtor along with one Bada Khetrabasi. Plaintiff 2 Raghunath and defendant 4 Neelakantha Sahu are the sons of defendant 3. Plaintiff 1 Khetrabasi is the brother of the said Ghanosyamo. Baba Khetrabasi was not a member of the family, but a partner in business with them. Padma Sahuani (plaintiff 3) is the widow of deceased Bada Khetrabasi. The said Bada Khetrabasi and defendant 3 executed a promissory note of Rs. 4000/- (Ext. 2) in favour of defendant 1 on 194- 1931, the note bearing interest at twelve per cent, per annum. Thereafter the executants used to make occasional payments and also used to borrow further sums from time to time. The biggest item that they borrowed after the execution of the said handnote was Rs. 2015/5/6. On calculation, the total amount due to the creditor was found to be Rs. 9382/- on 11-8-1936. The said Bada Khetrabasi and defendant 3 executed a further handnote on 11-81936, for the said amount, that is, Rs. 9382/- (Ext. 2-a). It is important to note here that for a part of this amount due upon the promissory note dated 11-81936, that is, for Rs. 5800/-, the debtors executed a simple Mortgage bond (Ext. 1) in favour of the said creditor on 13-4-1937. Defendant 1 brought a suit on the basis of the said promissory note dated 11-8-1936, for the recovery of the amount from the debtors, that is, Bada Khetrabasi and defendant 3, due on the handnote excluding the amount which was covered by the said mortgage bond dated 13-41937, Eventually, the creditor got a decree in O. S. No. 16/41; the decree was completely satisfied by a deposit, having been made by the judgment-debtors, of a sum of Rs. 3751/4/7 excluding the costs. The plaintiffs and defendants 3 and 4 having sold some of their properties, mortgaged to defendant 1, to defendant 2, defendant 2 deposited in Court a sum of Rs. 9864/5/6 on 27-1-1945, under the provisions of Section 83, T. P. Act. Defendant 1, the mortgagee, however, refused to take the amount in full satisfaction of the mortgage dues, but was willing to accept it in part satisfaction of them. The petition, however, was not pressed by defendant 2 and the deposit is still in Court. The plaintiffs bring this suit seeking relief under the provisions of Section 10, Orissa Money-Lenders Act on the allegations that the cash consideration that passed between the creditor and the debtors in respect of the above three transactions, that is, promissory notes dated 19-4-1931 and 11-8-1936 and the mortgage bond dated 13-4-1937, is only Rs. 6216/11/6; that the creditor, under the present law, is not entitled to more than double the amount, that, at any rate, the creditor having already realised Rs. 6977/15/4 is entitled now only to a sum of Rs. 5455/15/8; as such, the plaintiffs pray for declaration that out of the deposit made by defendant 2 defendant 1 is entitled only to a sum of Rs. 5455/15/8 and the plaintiffs are entitled to f:he balance.
(2.) Tile trial Court, accepting the legal position relied upon by the plaintiffs, that they are entitled to reopen the previous transactions under the provisions of Section 10, Orissa Money-Lenders Act, has decreed the suit on the following terms: "That the suit be decreed on contest against defendant 1 in favour of the plaintiffs as well as defendants 3 and 4. Preliminary accounts to determine how much defendant 1 shall be entitl- ed out of the amount deposited in Court by the pro forma defendant 2. Let it be declared that defendant 1 shall be entitled under his mortgage out of the amount in deposit only double the principal amount actually lent less those realised so far previously either under the two promissory notes or under the decree in O. Section 16/41. The costs of that decree however shall be excluded. The balance of the amount in deposit, the plaintiffs and defendants 3 ' and 4 shall be entitled to. Parties shall bear their own costs of this suit."
(3.) Several pleas were taken in the trial Court by the defendant but Mr. P.C. Chatterji, appearing on behalf of defendant 1, the appellant, has very fairly pressed only two contentions; (i) that the suit as framed is not maintainable and is barred under the proviso to Section 42, Specific Belief Act; and (ii) that in any view, in reopening the previous transactions, the Court is to take completely out of consideration the amount which merged into a decree and had been completely satisfied,;

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