A plaintiff who files a suit on the basis of a lost mortgage bond must prove the execution of the mortgage bond as required by law. The burden of proof is on the plaintiff to prove that the mortgage debt is still subsisting, and the defendants are not required to prove discharge of the liability.

SRINIVASACHARI, J. : -

This is an appeal against the judgment and decree of the Subordinate Judge, Gudivada in O. S. No. 1 of 1951. One Sri Raja Bommadevara Naganna Naidu executed a simple mortgage bond on 18th of April, 1933 in favour of one Sri Raja Venkata Ratnamma for Rs. 8,500/- in respect of sums due to the said Raja Venkata Ratnamma under a promissory note. The mortgagor hypothecated three villages, viz., Bollapadu, Appikatla and Velpore.

Subsequently on 27th February 1935 the mortgagee executed a mortgage in favour of one Nagapotrao mortgaging the right that she possessed under the mortgage bond of 18th April 1933. In addition to the above, the said Venkata Ratnamma executed an assignment in favour of the same Nagapotrao authorising him to collect the money due under the mortgage bond in her favour.

The three villages which were subject to mortgage were brought to sale in execution of a simple money decree against Raja Bommadevara Naganna Naidu, the original mortgagor and they were purchased at the Court auction subject to the mortgage by three persons. Bollapadu was purchased by one Nagayya, Appikatla by one Jaldu Venkata Subba Rao and Velpore by one Nageswar Swamy for the same Jaldu Venkata Subba Rao, the said Nageswar Swamy being Venkat Subba Raos clerk.

Nagapotharao the assignee of the mortgage re-assigned his rights in favour of the present plaintiff by means of a document dated 6th April 1945, Being Ex. A-3 in the case for a consideration of Rs. 32,000/-. Plaintiff has now brought this suit on the basis of the assignment in his favour for the recovery of the amount due under the mortgage together with interest accrued due thereon. The plaintiff has prayed for a decree for a sum of Rs. 16,131-8-0.

(b) To this suit the following persons were made parties : The original mortgagor as defendant No. 1. As the original mortgagee Lanka Venkata Ratnamma was dead, his legal representative was made defendant No. 2. Plaintiffs assignor Tatavarti Nagapotha Rao was made defendant No. 3. It may be mentioned that by this time Jaldu Venkata Subba Rao, the purchaser of the two villages, Velpore, and Appikatla was dead, and as he had executed a will before his death appointing certain persons as executors, the executors under the will were made defendants 4 and 5. The clerk of Jaldu Venkata Subba Rao in whose name the village of the Velpore was purchased benami was made defendant No. 6. Defendanf No. 7 is the purchaser of the village Bollapadu. Defendant 8 is the widow of Jaldu Venkata Subba Rao and defendants 9 to 11 are his daughters. Defendant 12 is the adopted son of defendant No. 8.

(c) During the pendency of the suit defendant No. 3 died and, therefore, his legal representatives have been brought on record and impleaded as defendants 13 to 15.

2. The plaintiffs suit is a simple suit on the basis of the mortgage assigned in his favour. Plaintiff, however, did not produce the original mortgage bond but stated that it was represented to him by his assignor that the original document was missing from the records. The suit, therefore, was laid as on a lost mortgage bond. The contending parties filed written statements.

The plaintiffs assignor viz., defendant No. 3, filed a written statement admitting the assignment by him in favour of the plaintiff and stating that the plaintiff was entitled to the amount due under the mortgage bond. He made a statement to say that no amount had been paid under the mortgage. The executors of the will of Jaldu Venkata Subba Rao who represented the estate being defendants 4 and 5 filed a written statement putting the plaintiff to proof of the mortgage.

They stated that they did not admit that any mortgage debt was subsisting which was payable by the estate of Venkata Subba Rao. They further averred that defendant 9 and themselves were appointed executors under the will of Venkata Subba Rao and as such, they in conjunction with defendant No. 3 discharged most of his liabilities.

It was also stated t