Kishun Singh and Another vs Jamuna Singh and Another

B.P. Jha, J.—Defendants preferred second appeal before this Court.

The plaintiff filed a suit for realisation of Rs. 2,500/-. It is said that defendant No. 1 took a loan of Rs. 2,500/- on the basis of a simple mortgage bond dated 26.7.1950 (Ext. 1 ) from the plaintiff.

Defendant No. 1 resisted the claim that he had not taken any loan from the plaintiff on the basis of a simple mortgage bond dated 26.7.50 (Ext. 1). On these facts the trial court dismissed the suit. On appeal the lower appellate court decreed the suit.

I uphold the findings of the lower appellate court and hold that the suit must be decreed. The simple point in the present case is whether the mortgage bond dated 26.7.1950 (Ext. 1) is a valid and genuine document. The lower appellate court considered this aspect of the case in paragraph 8 of its judgment and has held that there is sufficient evidence on the record to show that the consideration amount of the mortgage bond was paid to defendant No. 1. In this circumstance, the lower appellate court has held that Ext. 1 is a genuine document. The lower appellate court also held that defendant 1 took loan of Rs. 2,500/- from the plaintiff on the basis of a simple mortgage bond dated 26.7.1950 (Ext. 1). Both the courts below concurrently held that Ext. 1 was a genuine document and the consideration amount of Rs. 2,500/- was passed on to defendant No. 1. In view of this concurrent findings of facts I am unable to interfere with the judgment of the lower appellate court. The lower appellate court examined the plaintiff''s witnesses and held in paragraph 15 of its judgment that Rs. 990/- out of Rs. 2,500/- was applied towards the payment of antecedant debt by the defendants. I agree with the finding of the lower appellate court. I also hold that the loan was taken by defendant No. 1 for payment of the antecedent debts. I agree with the findings of the lower Appellate Court in paragraph 15 of its judgment. It is also the case of the plaintiff that the balance of the money was applied by defendants in construction of the residential house. This point has been discussed by the lower appellate court in paragraph 17 of its judgment. The lower appellate court held hi paragraph 17 of the judgment that there is sufficient evidence on the record to show that the defendants applied the money for the purpose of construction of the residential house. In this circumstance, I accept the findings of the lower appellate court that the mortgage bond (Ext. 1.) was a genuine document and defendant No. 1 obtained Rs. 2,500/- as loan for legal necessity.

Ultimately, learned Counsel for the appellants prays that his client is ready to pay Rs. 3,000/- in five equal instalments. In this circumstance, I do hereby direct the defendants to pay Rs. 600/- in five equal instalments on 30th June, 1977, 30th September, 1977 2nd January, 1978, 31st March, 1978 and 30th June, 1978. The amount will be deposited before the trial court on these dates. If the defendants fail to deposit any such instalments then the plaintiffs will be entitled to execute the decree as it is.

In the result, the judgment and decree of the lower appellate court are modified to this extent as mentioned above, The parties will bear their own costs.