Mitter, J. - (1.) This is an appeal by special leave from a judgment of the Madhya Pradesh High Court dated 6th February 1967 dismissing a Second Appeal by the appellant before this Court against a decree passed by the Additional District Judge of Ratlam for ejectment of the appellant from a house mortgaged by the predecessor-in-interest of the appellant to one Kesharimal for Rs. 3,100/- and further decreeing a claim for arrears of rent amounting to Rs. 731-35 and mesne profits at the rate of Rs. 20/- per month until eviction.
(2.) The relevant facts are as follows. On July, 29, 1945 Mathuralal, predecessor-in-interest of the appellant, mortgaged his house in Ratlam to Kesharimal for a sum of Rs 3,100/ with possession. The deed of mortgage contained the following terms:- 1. That interest would run on Rs, 3,100/- at Re. 0-10-0 per cent per mensem till realisation. 2. The period of redemption would be two years. 3. During the period of mortgage. "the tenant as may be shall execute the rent notes in favour of the mortgage and whatever rent shall be realised will be credited in lieu of interest and if the amount of rent shall exceed the amount of interest, the difference shall be deducted from the original sum due, but if the amount of interest shall exceed the amount of interest, the difference shall be deducted from the original sum due". But if the amount of interest shall exceed the amount of rent, then the mortgagor shall pay it. 4. Notwithstanding any vacancy during the period of the mortgage the rent would continue. 5. During the period of the mortgage an account of the rent and interest shall be settled after every six months. 6. The mortgagor undertook to keep the house in repairs during the period of the mortgage and in default of repairs by him the mortgagee was to be entitled to execute the necessary repairs and add the cost to his dues. 7. "The burden of the mortgage money shall be on the mortgaged house. In case the amount is not realised from the house, the mortgagee shall have a right to take steps to realise his money" from the mortgagor and his property of every kind.
(3.) On the same day the mortgagor executed another document in favour of the mortgagee reciting that his house in Ratlam was mortgaged with possession to the creditor who was "having its possession" and the mortgagor had taken the same on rent at Rs. 20 Per month on the following terms:- 1. The executant would pay the rent every month regularly and in default of payment of two months rent the mortgagee would be entitled to get him evicted. 2. The executant would white-wash and repair the house and keep it in good condition. 3. Kesharimal would be entitled to increase or decrease the rent. 4. The executant would vacate the house whenever asked to do so. 5. The executant would hand over possession of the house in the same condition in which he had received it.;