- (1.) The facts giving rise to this letters patent appeal are that Bihari Lal, the predecessor-in-interest of the defendant-respondents, executed mortgage deed, Exhibit P-5, of his property situated at Ambala in favour of the plaintiff-appellants on February 2, 1967, for Rs. 9,000/-. The interest on the mortgage amount was to be paid at the rate of 7-1/2 per cent. Bihari Lal entered into a compromise with the plaintiffs on August 23, 1969, and paid Rs. 4,000/- to the appellants towards the principal and interest upto July 31, 1969. The present suit was filed for the recovery of Rs. 5,000/- which stood as a balance after the adjustment of Rs. 4,000/- and Rs. 284/- as interest from August 1, 1969 to February 24, 1970.
(2.) Bihari Lal mortgagor died during the pendency of the suit. The defendants who are his successors-in-interest urged that the mortgage was without consideration. They further pleaded that Bihari Lal had mortgaged his property for Rs. 30,000/- in favour of the plaintiffs and the interest on this amount was to be paid at the rate of 12 per cent per annum. The amount of the interest came to Rs. 8,000/-. To put pressure on Bihari Lal, the mortgage for Rs. 9,000/- was got executed by adding another Rs. 1,000/-.
(3.) The parties went on trial before the Subordinate Judge II Class, Ambala Cantt. on the following issues :- "1. Whether the mortgage deed in question is without consideration ? 2. To what amount the plaintiff is entitled on account of balance of mortgage amount and interest ? 2-A. Whether the defendants are entitled to re-opening of the transaction and taking of fresh account. If so, to what effect ? 3. Relief." The learned Subordinate Judge decreed the suit of the plaintiff. On appeal the decree was affirmed by District Judge, Ambala. In the regular second appeal field by the defendants the decrees of both the Courts below were set aside with the observation that the amount payable by Bihari Lal mortgagor in consideration of the money which was held to be a loan, was in reality interest. The case was remanded to the trial Court with a direction to "reconsider the entire case and pass a decree in favour of the respondents on the basis that a sum of Rs. 30,000/- has been advanced to the appellants to begin with following by another sum of Rs. 2,100/- at the rate of 7-1/2 per cent per annum as interest." It is against this judgment that the present appeal under Clause X of the Letters Patent has been filed.;