1. ' The above suit is filed by the plaintiff for specific performance of an agreement of sale dated 4th February, 1987. The agreement was executed in favour of the plaintiff by defendant No,2 in his capacity as husband/attorney of defendant No,1, the owner of the property. The admitted position in the case is that the property in suit was mortgaged with defendant No,3 under two registered mortgage deeds dated 23rd October, 1984 and 12th December, 1984 each for Rs,1,00,000. The execution of above mortgage deeds is not disputed by the plaintiff but it is contended that the plaintiff is not liable to pay any interest on the amount secured under the mortgage deeds as and from the date the plaintiff instituted the above suit. The mortgage deeds clearly, provide for repayment of mortgage money in instalments with interest at the rate stipulated therein.
2. ' The learned counsel for the plaintiff is unable to point out any provision of law under which he is absolved from payment of interest on the amount secured under the above mortgage deeds.
3. ' On the last date of hearing, I had directed the learned counsel for the defendant No,3 to file in Court calculation of interest on the principal amount due under the above mortgage deeds at the rate of 13% simple interest from the date of filing of the suit till 30th September, 1989. Such calculation has been filed and according to the certified copy of the statement of accounts copy whereof has been supplied to the plaintiff, until 30th September, 1989 a sum of Rs,3,71,275.53 is due and payable by defendants Nos.1 and 2 in respect of the above two mortgages. Since the property was already mortgaged with defendant No,3 when defendants Nos.1 and 2 entered into the agreement of sale in respect thereof with the plaintiff, the plaintiff is entitled to specific performance of agreement of sale only upon payment of mortgage money due under the above mortgages. However, as the agreement of sale between plaintiff and defendants Nos.1 and 2 provided that the plaintiff will pay Rs,2,50,000 to defendant No,3 in discharge of liability of defendants Nos.1 and 2, under the above mortgages, but on calculation the actual liability of defendants 1 and 2 is found to be Rs,3,71,275.53, the plaintiff is entitled to a decree for the excess amount paid by him to defendant No,3 in discharge of the liability of defendants 1 and 2.
4. Accordingly the suit of the plaintiff is decreed as follows:-
(a) That the plaintiff will pay to defendant No,3 a sum of Rs,3,71,275.53 being the amount due under the two mortgage deeds dated 23-10-1984 and 12-12-1984 and upon payment of this amount defendant No,3 will execute proper deed of redemption in respect of the property in suit and handover the redemption deed alongwith all documents of the title in their possession relating to the property to the plaintiff.
(b) For the excess amount of Rs,1,21,275.53 which the plaintiff has paid to defendant No,3 on account of liabilities of defendants Nos.1 and 2, the plaintiff is entitled to decree for the above amount with proportionate cost against defendants 1 and 2.
(c) The defendants 1 and 2 are directed to execute a proper deed of conveyance/sale in favour of plaintiff upon redemption of property in accordance with the law failing which such deed will be executed by the Nazir in favour of the plaintiff. Decree to follow accordingly. accordingly.