Sadhu Saran Rai vs Barhamdeo Lall and Another

Mullick, J.—The plaintiff sued for the recovery of a sum of money which he had lent to the Defendant No. 1 upon a usufructuary mortgage bond. Subsequent to the mortgage the Defendant. No. 1 sold the land to the Defendant. No. 2 and the Defendant No. 2 filed the bond in Court in proof of his allegation, that the bond had been discharged and that the plaintiff was not entitled to any, decree.

The trial Court found that the plaintiff had not been dispossessed from the mortgaged land on the date alleged.

In appeal the Subordinate Judge has found that the plea of payment is false. He has not come to any finding on the plaintiff''s case with regard to dispossession.

In Second appeal before us it is urged that the case should be remanded is order that the Subordinate Judge may consider the evidence on the question of dispossession. In our opinion this is not necessary. The finding that the bond has not been discharged and that its possession by Defendant No. 2 does not prove that it has been discharged, is sufficient for the disposal of the case. It. was not necessary to go into the further question as to whether the plaintiff was or was not dispossessed on the particular date alleged in the plaint. It was admitted in course of the trial that the plaintiff was not in possession of the mortgaged land and, therefore, he was, entitled to a decree on the mortgage still outstanding.

The appeal is dismissed with costs.

The Stamp Reporter has reported that deficit Court-fee amounting to Rs. 14 is due from the plaintiff upon his memorandum of appeal in the first appellate Court by reason of the accrual of interest upon the principal amount since the filing of the plaint. We cannot find any provision of law authorising the assessment of additional Court-fee by reason of the accrual of interest pendente lite.

Here the appeal was by the plaintiff and the subject matter in dispute was the amount claimed in the plaint, and no question arose u/s 11 of the Court-fees Act. In an appeal by the defendant it might have1 been otherwise. The plaintiff was rightly called upon to pay only upon the claim laid in the plaint.

Kulwant Sahay, J.

I agree.