P. B. MUKHARJI, J.

( 1 ) THIS is the plaintiff's appeal from the Judgment of Mr. Justice G. K. Mitter, dismissing the plaintiff's mortgage suit against the first two defendants and granting only a personal decree for Rs. 44,325/- with costs against the rest of the defendants limited to the extent of assets received by them from the deceased predecessor of the defendants.

( 2 ) THERE were seven defendants to the suit. Defendants 3 to 7 did not enter appearance and contest the suit. Defendants 1 and 2 entered appearance, filed, their written statement and contested the plaintiff's claim at the trial. The first two defendants, however, called no evidence. The relevant facts may be briefly accounted.

( 3 ) THE plaintiff's suit was on an equitable mortgage by deposit of title deeds against the defendants in respect of premises No, 9/3, Arpuli Lane, Calcutta and 81, Lower Circular Road, Calcutta. In these properties Noder Chand Dutt and Gora Chancl Dutt were supposed to have an undivided 1/20th share. Thereafter by a partition suit Noder Chand and Gore Chand were allotted the northern portion of the land at 81, Lower Circular Road, Calcutta, now separately numbered as 81/2, Lower Circular Road. The loan is evidenced by a promissory note dated the 13th October, 1923 executed by Noder Chand Dutt and Gora Chand Dutt for the sum of Rs. 22,500/ -. In point of fact, the loan has been going on for some time before that date. Noder Chand and Gora Chand continued to make payments on account of interest on the said promissory note and endorsed such payments on the note. The last of the endorsements made by both Noder Chand Dutt and Gora Chand Dutt on the promissory note is dated the 30th July, 1938. Noder Chand died on the 9th February, 1939, leaving the first two defendants, his son and widow, as his heirs and legal representatives. Thereafter the endorsements of the payments of interest on the note were continued to be made by Gora Chand Dutt until the 25th July, 1947. Then on the 30th October, 1947 Gora Chand Dutt also died. Both Gora Chand and Noder Chand died intestate. Defendants 3 to 7 are the widow and the sons of Gora Chand Dutt. Plaintiffs claim a sum of Rs. 44,325/-being twice the principal of Rs. 22,500/- less Rs. 675/- by reason of the law of Damduput. The present plaintiffs are the executors of Kumar Kartick Churn Mullick since deceased who lent the aforesaid moneys to Noder Chand and Gora Chand and who claimed to be the mortgagee.

( 4 ) KUMAR Kartick Churn Mullick died after giving evidence in the suit.

( 5 ) ON the first issue the learned trial Judge came to the finding that Noder Chand Dutt and Gora Chand Dutt did not deposit the title deeds with Kumar Kartick Churn Mullick with intent to create a security for the repayment of the debis due to Kartick. In other words, the learned trial Judge came to the conclusion that there was no mortgage. On the second issue as to whether Kartick lent and advanced any money to Noder Chand and Gora Chand, he came to the finding that the promissory note was executed for valuable consideration.

( 6 ) THE appellants before us are the executors of the deceased plaintiff who are the present plaintiffs.

( 7 ) THE appellants contend that the record and the evidence prove conclusively that there was this mortgage and that there was no evidence to the contrary. The learned trial Judge says that when the case first came on for hearing he was of the opinion that it was a straightforward case and the fact of the deposit of the title deeds coupled with the existence of a loan which could not be disputed, would raise a presumption that a mortgage had been created. But then gradually the learned Judge says that he changed his mind, and he mentions the reasons which influenced him most to come to a different conclusion to hold that there was no mortgage.

( 8 ) HIS first reason is the delay of the mortgagee in enforcing the mortgage after about 25 years although he had the title deeds lying with him

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