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indra NaraIn Sarkar and ors. Vs. Bedeswari Dassya - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in30Ind.Cas.32
Appellantindra NaraIn Sarkar and ors.
RespondentBedeswari Dassya
Excerpt:
mortgage suit - balance due--effect--payment alleged, proof of. - .....it being admitted that as there was some money still outstanding on the mortgage, the suit should not have been entirely dismissed. had the matter rested there, it might have been possible for us to have dealt with the question ourselves. bat on reading the judgment i think it would be advisable that we, while setting aside the judgment and decree of the lower appellate courts, should send the case back for re-decision. the onus of proving the payment alleged by the defendant was upon her. the first court in the first instance found that the evidence of payment which she had produced was untrustworthy; and the lower appellate court does not appear to have dealt at all with this first part of the case, and it merely rested its decision upon the fact that the plaintiff had not produced.....
Judgment:

1. This is a suit brought upon a mortgage. Amongst other defences, a plea was taken that a certain sum specified had been paid; it was admitted, however, that there was a balance due.

2. The first Court found that the sumalleged to have been paid had not been paid. On appeal, the District Judge, on the ground that the plaintiff had not produced the original deed upon which it was alleged that an endorsement of payment had been made, dismissed the suit.

3. It is conceded that this was an error, it being admitted that as there was some money still outstanding on the mortgage, the suit should not have been entirely dismissed. Had the matter rested there, it might have been possible for us to have dealt with the question ourselves. Bat on reading the judgment I think it would be advisable that we, while setting aside the judgment and decree of the lower Appellate Courts, should send the case back for re-decision. The onus of proving the payment alleged by the defendant was upon her. The first Court in the first instance found that the evidence of payment which she had produced was untrustworthy; and the lower Appellate Court does not appear to have dealt at all with this first part of the case, and it merely rested its decision upon the fact that the plaintiff had not produced his deed. Under these circumstances, we set aside the judgment and decree of the lower Appellate Court and remit the case to the District Judge for a fresh decision on the facts.

4. The appellant in this Court will be entitled to his costs of this appeal.


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