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Hikmat Ullah Khan Vs. Abdul Azim Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All218; 61Ind.Cas.412
AppellantHikmat Ullah Khan
RespondentAbdul Azim Khan and ors.
Excerpt:
.....the plaint, but in their further statements they admitted that a bond bad been exeonted by abdul azim khan answering to the description of the mortgage-bond mentioned in the plaint. they alleged that it was in consequence of this that the original mortgage--deed bad not been produced by the plaintiff. in the present case those terms were not disputed and, therefore, the non--prod notion of the original was not sufficient for the dismissal of the suit, if the mortgage bad been totally denied the plaintiff could not prove the factum of the mortgage without producing: had abdul azim khan been in collusion with the plaintiff he would in all probability have denied that the bond bad been discharged and had been made over to him p however, that is not the point before us. in our opinion, the..........plaint but it was alleged that it had been last. the suit was brought against the mortgagor, abdul azim khan, who is now dead, but subsequently to the institution of it, and before the case went to trial the defendants nos. 2 to 4 were added as parties on the ground that they were subsequent transferees of the mortgaged property. both sets of defendants filed written statements. abdul azim khan stated that the amount of the mortgage had been discharged and the mortgage bond had been returned to him with an endorsement on it. he produced a document which, he alleged, was the mortgage--deed but it was found by the court of first instance and also by the lower appellate court that the document which was produced by abdul azim khan was a forgery, and that the seal of the sub--registrar which.....
Judgment:

1. This appeal arises out of a suit brought by the plaintiff--appellant to enforce a mortgage. The original mortgage--deed was not produced with the plaint but it was alleged that it had been last. The suit was brought against the mortgagor, Abdul Azim Khan, who is now dead, but subsequently to the institution of it, and before the case went to trial the defendants Nos. 2 to 4 were added as parties on the ground that they were subsequent transferees of the mortgaged property. Both sets of defendants filed written statements. Abdul Azim Khan stated that the amount of the mortgage had been discharged and the mortgage bond had been returned to him with an endorsement on it. He produced a document which, he alleged, was the mortgage--deed but it was found by the Court of first instance and also by the lower Appellate Court that the document which was produced by Abdul Azim Khan was a forgery, and that the seal of the Sub--Registrar which it bears is not the seal of the Sub--Registrar's Office. The Sub--Registrar was examined and he denied that he had registered the document and that the signature on it was his so that we must take it that the document which Abdul Azim Khan produced was not the original mortgage deed. The other defendants, the transferees, who are the real persons interested in this case, generally denied all the allegations in the plaint, but in their further statements they admitted that a bond bad been exeonted by Abdul Azim Khan answering to the description of the mortgage-bond mentioned in the plaint. They stated, however, that as the rate of interest mentioned in the bond, namely, compound interest at the rate of 371/2 per cent. per annum with half yearly rests, was exorbitant the mortgagor, Abdul A aim Khan, borrowed Rs. 300 from Abdul Ghaffar, the predecessor in--title of these defendants, and with a further sum procured by himself discharged the mortgage and took back the mortgage--bond. They alleged that it was in consequence of this that the original mortgage--deed bad not been produced by the plaintiff. The Court of first instance, for reasons which are not very clear, dismissed the suit holding that in its opinion the mortgage had been discharged. The plaintiff appealed. The lower Appellate Court, whilst holding that the document produced by Abdul Azim Khan was a forgery, dismissed the plaintiff's suit simply on the ground that the absence of the original mortgage deed had not been accounted for and that the original had not been filed. We think that that was not a sufficient reason for dismissing the suit. The production of the mortgage--deed was necessary for the purpose of proving the terms of the mortgage. In the present case those terms were not disputed and, therefore, the non--prod notion of the original was not sufficient for the dismissal of the suit, If the mortgage bad been totally denied the plaintiff could not prove the factum of the mortgage without producing: the original mortgage--deed, but, as stated above, this was not the case in the present suit. The defendants did not deny the factum of the mortgage but what they alleged was, that the mortgage had been discharged by payment. It was, therefore, necessary for the learned Judge to find whether the mortgage had in fast been discharged or not. The non--production of the original mortgage might be an important tactor in considering whether the mortgage had been discharged or not. It is probable that Abdul Azim Khan was in collision either with the defendants or with the plaintiff. The production of a bond which was alleged to be the original bond was certainly a circumstance to support the allegation of payment. It could not be a matter in which the plaintiff would be interested. Had Abdul Azim Khan been in collusion with the plaintiff he would in all probability have denied that the bond bad been discharged and had been made over to him P However, that is not the point before us. In our opinion, the learned Judge should have come to a clear finding upon the question whether the mortgage which the plaintiff sought to enforce bad been discharged, and, as he has not come to any such finding, we must refer the following issue to him under Rule 25 of Order XLI of the Code of Civil Procedure:

Has the amount of the mortgage in favour of the plaintiff been paid in whole or in part, and is any or what amount due to the plaintiff on mortgage?

3 The Court below will permit the parties to adduce evidence on the point. On receipt of its finding the usual ten days will be allowed for filing objections.


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