- (1.) THIS is a plaintiff's second appeal against a decree of the Additional Civil Judge of Lucknow.
(2.) DEFENDANTS I and 2 executed a mortgage in favour of Hafiz Afzal Husain, since dead, for Rs. 1000/- on 3rd of July, 1937. No interest was contracted and it was mentioned in the mortgage deed that the mortgagee had been put into possession. The mortgagee, however, gave back the mortgaged property to the mortgagors on theka. On the 11th of April, 1946, a suit for the recovery of the mortgage money and certain sums due from the mortgagors on account of the unpaid theka money as also for Rs. 103/12/3 said to have been paid by the mortgagee in satisfaction of a decree was instituted. It was alleged on behalf of the plaintiff that he had to pay Rs. 103/12/3 in order to save the property from being sold in execution of a decree and he was, therefore, entitled to recover this amount along with the mortgage money from the mortgagors under Section 72 of the Transfer of property Act. The un-realized theka money was claimed on the ground that it represented interest on the principal sum.
(3.) THE suit was contested on several grounds. The material grounds, however, on which the suit was contested are that the plaintiff was not entitled to any interest as the mortgage was a possessory mortgage and that he was not entitled to recover Rs. 103/12/3, as this sum had not been paid for protecting the property from sale and further that no notice had been served upon the mortgagors to pay up the money before the sum was paid by the mortgagee in the execution court. A plea was also raised that a sum of Rs. 74/- out of Rs. 1000/- had not been received by the mortgagors.;