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Munshi Brij Kumar Lal and ors. Vs. Munshi Majlis Sahai and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in34Ind.Cas.899
AppellantMunshi Brij Kumar Lal and ors.
RespondentMunshi Majlis Sahai and ors.
Excerpt:
mortgage - accounts, settlement of, between mortgagor and mortgagee--mortgagee in possession--rests. - .....raised before. us is, as there was an express agreement between the parties as set forth in the mortgage-bond that the principal would be paid to the plaintiffs in a lump sum after the expiry of the term of the mortgage-bond, mr. justice chapman has erred in dismissing the appeal after deducting the rent and interest with rests from the principal every year. the appellants who raised this contention did not themselves keep the term of their contract, and what has in effect been done is to adjust the rights of the rival parties according to the nature and spirit of the agreement entered into between them. what was the effect of keeping the money which should have been repaid? the answer is, we think, that that money must go to discharge the principal due at the time. that must be taken.....
Judgment:

1. In this case Mr. Justice Chapman has confirmed the decision of the Subordinate Judge.

2. The contention that has been raised before. us is, as there was an express agreement between the parties as set forth in the mortgage-bond that the principal would be paid to the plaintiffs in a lump sum after the expiry of the term of the mortgage-bond, Mr. Justice Chapman has erred in dismissing the appeal after deducting the rent and interest with rests from the principal every year. The appellants who raised this contention did not themselves keep the term of their contract, and what has in effect been done is to adjust the rights of the rival parties according to the nature and spirit of the agreement entered into between them. What was the effect of keeping the money which should have been repaid? The answer is, we think, that that money must go to discharge the principal due at the time. That must be taken to be done which should have been done. If the appellants have withheld payment, they must be taken therefore to have applied such sum towards the discharge of their own dues on the security.

3. We see no sufficient ground for disturbing the decision under appeal, and we, therefore, dismiss this appeal with costs.


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