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Lala Hardeo Prasad and ors. Vs. Ganga Sahai and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All197; 61Ind.Cas.48
AppellantLala Hardeo Prasad and ors.
RespondentGanga Sahai and ors.
Excerpt:
mortgage, usufructuary - redemption, suit for--mortgagee jailing to produce proper account amount due, method of calculating--civil procedure code act v of 1918, order xli, rule 1--plaintiff accepting decision of trial court, whether can challenge decision in second appeal by cross objection. - .....all the outgoings and all the outgoings. the court below have, therefore, in the absence of proper accounts calculated the amount due to the mortgagees on the hypothesis, that ail the tenants have paid their rents. the point is important for the parties because a rate on interest was fixed for the amount advanced and it was agreed that if the income of the property wan insufficient in any year to satisfy the claim for interest, the unpaid balance of interest was to carry a higher rate of interest and compound interest was to run upon it. it was also agreed that if, in any year, the income was greater than the amount due as interest, the mortgagors were to receive credit for the excess in view of tie fact that the appellants did rot produce proper account (either intentionally or.....
Judgment:

1. This second appeal arises out of a suit for redemption of a usufructuary mortgage and is preferred by certain of the mortgagees. The other mortgagees have not appealed but they have been made parties by the appellants to the present appeal and are represented. The sole question before us in this appeal in, whether the Courts below have adopted tire right principle in making up the account between the parties. 'What has happened in this: The mortgagees have not product; full and proper account in Court. The Zamindar property was mortgaged to them and they have produced accounts showing simply in one lump sum the alleged income from tea Zanmidary for each year or part, of she year. They have not attempted to products a detailed account which they ought to have kept showing all the outgoings and all the outgoings. The Court below have, therefore, in the absence of proper accounts calculated the amount due to the mortgagees on the hypothesis, that ail the tenants have paid their rents. The point is important for the parties because a rate on interest was fixed for the amount advanced and it was agreed that if the income of the property wan insufficient in any year to satisfy the claim for interest, the unpaid balance of interest was to carry a higher rate of interest and compound interest was to run upon it. It was also agreed that if, in any year, the income was greater than the amount due as interest, the mortgagors were to receive credit for the excess In view of tie fact that the appellants did rot produce proper account (either intentionally or negligently) we think that the source taken by the Courts below was fully justified and the only proper course to take in the circumstances of the case. On the face of the accounts calculated in this way, as a matter of fact, a sum of only Rs. 1,785 12 6 was really doe to the appellants, but by reason of a mistake in the accounts a sum of Rs. 2,410-2-1 was decreed to them and the plaintiffs did not appeal against that amount but accepted it. The fact that the plaintiffs had deposited Rs. 4,000 under Section 83 of the Transfer of Property Act did not entitle the present appellants to recover that sum. That was a matter between the original mortgagors who sold their property to the plaintiffs and who left with the plaintiffs the sum of Rs. 4,000 to be deposited. In our opinion, there is no force in this appeal and it must be dismissed and it accordingly is dismissed with costs including fees on the higher scale.

2. The two sets of respondents will recover separate costs.

3. Objections have been filed on behalf of the plaintiffs in respect to the error which was discovered in the accounts in the Court of Appeal. The plaintiffs accepted the decision of the Court of first instance as to the amount due and filed no appeal. They are, therefore, tot entitled to go behind that decree. As for the value of the trees which were supposed to have been cut, the finding of the Court below is a finding of fact and cannot be disturbed in second appeal. The cross-objections are, therefore, disallowed with costs.


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