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Varid Sahayam Fernandez Vs. RanchordIn Kheki and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in15Ind.Cas.362
AppellantVarid Sahayam Fernandez
RespondentRanchordIn Kheki and ors.
Excerpt:
mortgage suit - mortgagor and mortgagee--final decree--accounts--execution--legality. - .....defendant's mortgagee, cannot recover from the 1st defendant more than the sum of rs. 1,200, which the 1st defendant; was bound to pay the 2nd defendant. the decree of the lower appellate court must be modified accordingly.2. we may point out that the provision made in the judgment of the lower court for taking accounts between the parties in execution is not in accordance with law. accounts between a mortgagor and a mortgagee should be taken by the court before passing a final decree. in this case, however, there is no necessity for taking any accounts as the amount payable by the 1st defendant is already certain, viz., rs. 1,200.3. it was also contended for the appellant that there was no proper notice of demand made on the 1st defendant. this contention is clearly.....
Judgment:

1. According to Exhibit A, the first defendant is bound to pay the 2nd defendant only Rs. 1,200. There was no stipulation for the payment of any interest far the debt as the mortgage was usufructuary and the land mortgaged was to be enjoyed in lieu of interest. The plaintiff, as sub-mortgagee from the second defendant's mortgagee, cannot recover from the 1st defendant more than the sum of Rs. 1,200, which the 1st defendant; was bound to pay the 2nd defendant. The decree of the lower Appellate Court must be modified accordingly.

2. We may point out that the provision made in the judgment of the lower Court for taking accounts between the parties in execution is not in accordance with law. Accounts between a mortgagor and a mortgagee should be taken by the Court before passing a final decree. In this case, however, there is no necessity for taking any accounts as the amount payable by the 1st defendant is already certain, viz., Rs. 1,200.

3. It was also contended for the appellant that there was no proper notice of demand made on the 1st defendant. This contention is clearly unsustainable.

4. There will be no order for costs in the second appeal. The 1st defendant will pay plaintiff's costs on the amount decreed against him.


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