GOPALJEE JHA Vs. PTUPENDRA NARAIN JHA

JUDGEMENT

(1.) This is an appeal by defendants 2 to 4 who are purchasers of the interest of the mortgagor in execution of a money decree. The only question for consideration is whether the plea of payment set up by the defendants can be accepted at all or in part. The circumstances which led me to remand this case are clearly indicated in my order of remand dated 8 September 1941. In pursuance of that order, the learned District Judge has now sent up his findings which are findings of fact and must be binding upon this Court. These findings are that plaintiff 1 was in the village by the evening of the 18 September 1935, but there is no conclusive proof that he was in the village as early as 2 P.M. when the payment of Rs. 287 was said to have been made. It is also found that the post-card, Ex. C was written by plaintiff 1 and sent by him to defendant 2 by which defendant 2 was asked to pay up the dues under the bond in suit to plaintiff 12 who is the son of plaintiff 2 who was Hi at Baidnathdham and required treatment there.

(2.) The question arises whether upon these findings of fact the plea of payment ought to be accepted. The learned advocate for the respondents argued that in view of the clear stipulation in the bond that no payment will be accepted unless it is made by a registered receipt or unless it is endorsed on the back of the bond the defendant is not entitled to rely upon the factum of payment although upon the findings the payment must be accepted to have been made and he relies upon the case of this Court reported in Khub Lal V/s. Bechan Mandal A.I.R. 1940 Pat. 49. This case was distinguished by Agarwala, J. in a decision reported in Ram Kirpal Choudhury V/s. Baleswar Choudhury A.I.R. 1941 Pat. 246. That distinction was confirmed in a still later case by Rowland J. in Sago Rai V/s. Ramjee SinghA.I.R. 1942 Pat. 105. In the last case there was a stipulation in the mortgage bond that whenever the mortgagor would pay any instalment he would get the payment endorsed on the back of the bond, and further that except such endorsement on the back of the bond any other receipt fit oral or documentary evidence regarding payment will not be entertainable in Court and will be null and void. Rowland J. having considered the case law on the point approved of the view taken by Agarwala J. and held that although it was open to the mortgagee to refuse to appropriate towards the mortgage debt any payment which might be made by the debtor and not endorsed on the mortgage bond, yet that condition was waived by the creditor himself because the receipt showed in the clearest possible terms that the creditor had in fact appropriated the payment to the mortgage debt, notwithstanding that he had fn the bond reserved himself the power not to do so. There was thus a waiver of the stipulation of the mortgage bond when the mortgagee appropriated the payment in question as a part satisfaction of the mortgage debt. It was also held that although the mortgagor undertook that he should not offer any other evidence and that if he did the Court should not receive it, the Court was not a party to the latter proposition and was not bound by it, so that if evidence were tendered what the Court would see was whether it was admissible under the Evidence Act or whether in tendering it some breach of contract had been committed. With respect I agree with the observations made by Agarwala J. and by Rowland J. The result, there-fore, is that the receipt must be accepted as payment towards the mortgage debt so far as it goes, that is to say, the plaintiff must give credit for the amount which is to be found in the receipt.

(3.) It was then argued that the payment made to a junior member of the family cannot be held to satisfy the mortgage debt. But the circumstances in this case are entirely different. Upon the findings of the learned District Judge the payment, though made to a junior member, was made upon the express direction given by the mortgagee by a post card which has been found to be genuine. Therefore, the payment to the junior member in this case was a payment made to a person authorised to receive it. But I am unable to hold that the junior member had any right to make any remission. He was not authorised to do so and the post card Ex. C was not addressed to him and there is no other evidence.