CHINNARI LAKSHMANA MURTY Vs. BANKO DAS

JUDGEMENT

(1.) THE plaintiff has brought this second appeal against the reversing judgment dated 10 -10 -1950 of Sri K.K. Bose, Subordinate Judge of Berham -pur arising out of a suit for enforcement of a mortgage transaction dated 20 -6 -1924. The transaction (Ex. 2) was executed by one Agadhu and his two sons Kondho & Hadu. Kondho is pre -sent defendant 2 and Agadhu and Hadu are dead. Defendant 3 is Kondho's son and defendant 4 la the son of Hadu. Defendant 1 is a purchaser in execution of a mortgage decree on the basis of a subsequent mortgage, his purchase being of the year 1947. The mortgage transaction was in favour of Chinnari Narasaya Prusty and Kureahu Prusty. The plaintiff's allegation is to the effect that he is the adopted son of Kureshu Prusti and on the basis of a family arrangement between them, the mortgage transaction was allotted to the share of the present plaintiS. There is no dispute that the plaintiff is the adopted son of one of the mortgagees and on the basis of an arrangement the mortgage transaction was allotted to the share of the plaintiff. The transaction is for a principal amount of Rs. 900, the recitals being to the effect that Rs. 600 out of the principal amount is to be paid in eight years in equal annual instalments, The penal section is only to the effect that if there is a default in the payment of the above instalments the entire principal money will carry compound interest. The plaintiff in bringing the present suit on 3 -7 -1947 has relied upon three payments for the purpose of saving limitation. The first payment of Rs. 85 is dated 7 -10 -1937 (Ex. 2 -a), the second payment of Rs. 35 is dated. 10 -3 -1938 (Ex. 2 -b) and the third payment of Rs. 257 - is dated 15 -4 -1938 (Ex. 2 -c). The payments are endorsed on the back of the document itself. It is further to be stated that the plaintiff had averred in the plaint that defendants 2 to 4 had executed two sale -deeds (Exs. A and B) intending to discharge the mortgage amount by virtue of conveying the properties covered by the said two deeds, but no effective title was conveyed, and, as such, there was no discharge of the mortgage transaction. He therefore falls back upon the mortgage transaction and lays claim at Rs. 1500.

(2.) THE main contesting defendant is defendant 1 the purchaser in execution of a mortgage decree on the basis of a subsequent mortgage, and his main point is the point of limitation.

(3.) THE trial Court found in favour of the plaintiff that the endorsements (Exs. 2 -a to 2 -c) are genuine endorsements showing actual payments of the amount mentioned as against each of the endorsements. The lower appellate Court however has vacated this finding and dismissed the suit on the point of limitation.