Mahadeo Lal Marwari vs Dalip Narayan Singh and Others

Mullick, Ag. C.J.

This is an application for leave to appeal to His Majesty in Council by Mahadeo Lal Marwari who was the unsuccessful appellant in Appeal No. 243 of 1922 before a Division Bench of this Court Vide Muhammad Tabarak Ali Khan Vs. Dalip Narain Singh Bahadur and Others, . The facts are these:

On 22nd December 1915, Mukemi Begum and four of her sons, namely, Amir Hussain, Lutof Ali, Davar Ali and Yavar Ali executed a mortgage bond for a sum of Rs. 1,35,000 in favour of Rai Bahadur Baijnath Goenka, the remaining son Tabarak Ali not joining in the bond. On 10th February 1916, the four sons, Amir Hussain, Lutof Ali, Davar Ali and Yavar Ali executed each a separate mortgage bond in respect of not only their interest in the properties covered by the bond of 22nd December 1915, but also in respect of some other properties in favour of Rai Bahadur Dalip Narayan Singh. The sums borrowed were respectively Rs. 50,000, Rs. 30,000, Rs. 16,000 and Rs. 10,000.

Rai Bahadur Dalip Narayan Singh then paid off the mortgage of 22nd December, 1915, and brought a suit upon that mortgage as well as upon the four mortgages of 10th February 1916.

In the suit on the bond of 22nd December 1915, he impleaded among others Tabarak Ali, who, though he had not joined in the bond, had, after Mukemi Begum''s death, succeeded to her share in the property. In the suit on Amir Hussain''s bond the plaintiff added Mahadeo Marwari as a defendant because he had purchased Amir Hussain''s interest. Rai Bahadur Dalip Narayan obtained decrees upon all the bonds before the Subordinate Judge of Monghyr who, among other things, directed the sales in respect of the bonds of 10th February 1916, to be held subject to the sale in respect of the bond of 22nd December 1915.

Appeals were preferred to the High Court against the decree in each case, but we are concerned here only with Appeal No. 243. That appeal was dismissed, but the appellant Mahadeo Lal Marwari''s advocate Mr. Naresh Chandra Sinha, among other things contended that the proper order was that only one sale should be held and that the fund should be distributed rateably after satisfying the first bond. The Division Bench accepted this contention and fixed a new date for redemption, six months from the date of its judgment. Upon the main question whether the principal defendants were liable for the mortgage money the Court found against them.

It is contended on behalf of Mahadeo Lal Marwari that, though the decision of the Division Bench was apparently one of affirmance, it was in reality a decision of reversal inasmuch as a new date for redemption has been fixed and interest at the bond rate has been made to run from the expiry of the date fixed by the trial Court till the date fixed by the Division Bench thereby imposing an additional liability of about Rs. 19,000 on the petitioner.

It is true that the High Court decree is for a larger amount than the trial Court''s decree but that does not make the decision one of reversal, and one has to look at the substance of the matter. The petitioner was the appellant before the Division Bench and it was in consequence of his objection there that the mode of executing the decree was varied. It was open to him when pressing the objection to inform the Division Bench that he could not under any circumstances consent to an extension of the period of redemption. The Court was not bound to extend and if he had given the slightest inkling that he would let the property be sold rather than have an extra period of time for redemption the Court would, as it was bound to do, have acceded to his prayer. He cannot, in my opinion, appeal against an order which has been made for his benefit. In substance, therefore, the decision is not one of reversal.

But the petitioner''s real object in taking this point is to press his case as regards the merits. His defence in the trial Court and also in the appeal Court was that out of the consideration of Rs. 50,000 Amir Hussain got only Rs. 14,000 and that the balance of Rs. 36,000 was not accounted for. The appeal Court examined this objection carefully and found on the facts that the alleged partial failure of consideration was not established. The decision of the Division Bench was one of affirmance and the petitioner is not entitled to leave unless he can show a substantial point of law.

The petitioner then falls back upon his next point which is that, even if the decision is one of affirmance, he has a substantial point of law inasmuch as the Division Bench has wrongly called upon the defendant to prove that the consideration money was not applied as alleged by the plaintiff. The answer to this is that when the whole evidence is in, the question of onus is merely academical. Furthermore having carefully considered the judgment of Mr. Justice Das, it does not appear that there is any substance in the point about onus.

The result is that the application for leave to appeal is dismissed with costs: hearing-fee five gold mohurs.

Jwala Prasad, J.

I agree.