This appeal is against the judgement and decree dated 30.1.86 passed by the Assistant District Judge, Jorhat in Title suit No. 5/1978.

2. Plaintiff United Bank of India, Jorhat Branch has instituted a suit for realisation of Rs. 29,213.41/- (Rupees twenty nine thousand two hundred thirteen and paise fourty one) from the defendant. The case of the plaintiff in brief is that the defendant No. 2 (respon­dent No. 2) applied for a loan of Rs. 25,000/- for his M/s Sarudhan Fish Refrigeration & Ice House. The application was recomme­nded by the Assistant Director, Cottage Industries, Jorhat and the plaintiff Bank sanctioned an amount of Rs. 22.000/- on 13.3.72 aga­inst hypothecation of plans, machineries etc. and against mortgage of immovable properly. The mortgage deed was executed by defendant /respondent No. 2 and his son defendant/ respondent No. 3. The loan was to be repaid with 5% interest above the Reserve Bank int­erest at monthly rent. The defendant unable to repay the loan as per terms, executed a fresh set of documents including the promissory note on 3.7 75 promising to pay Rs. 22,000/- with interest 5% above Reserve Bank rate subject to a minimum of 11% per annum. The defendant however failed to pay any amount and furnished returns of their business as required under the agreement. Notice demanding the repayment of loan and interest were served upon the defendants but they failed to comply with. In the suit plaintiff claim for a decree of Rs. 29,893/- with cost and future interest and for sale of the hypothecated plants and machineries as on first charge and also for sale of mortgage land and houses. The respondent No. 2 and 3 as defendant No. 2 and 3 jointly filed written statement contesting the suit both on points of law and facts. They do not deny that the loan was taken from the plaintiff but they deny the due execution of promissory note dated 3.7.75, mortgage deed and other documents.

3. The Trial court framed seven issues. But in this appeal the appellant Bank mainly press the issue No. 5 and the respondents based his arguments on issue No. 6. In view of the matter, I take up for my consideration, whether a mortgage decree is obtai­nable (issue No. 5) an whether any mortgage decree or any other decree can be endorsed against defendent No. 3 on the documents filed by the plaintiff in the suit (issue No. 6). The learned trial court came to the finding that the plaintiff is entitled to get a simple money decree against defendant No. and 2 and as regards the claim for a mortgage decree by selling the mortgaged property in enforcement of the mortgaged decree, the court below came to the finding that the mortgage deed was not a valid deed of mortgage, therefore the defendant No. 3 cannot be held liable for any claim and no decree can be passed against him.

4. The plea taken by the plaintiff/appellant in this appeal is that the defendant No. 2 and 3 executed the mortgage deed to se­cure the loan and the plaintiff proved the certified copy of the mortgage deed which was admitted without objection as Ext. 8. The original deed which was said to be in the custody of the defendant, was called for by issuing notice to produce the original. But against such evidence the respondents did not adduce any evidence at all. On perusal of the written statement I find that the respondent/defendant denied the execution of mortgage deed in respect of the properties given in schedule B of the plaint for realisation of the plaintiff's due. The respondents also denied the plaintiff's claim for the amount due to appellant including cost and interest and denied' that there cannot be a mortgage decree in the present form and on the documents available the properties of the defendant No-3 cannot be sold for any debt of the defendant No. 1 and 2.

5. I have perused the impugned judgement, documents and evidence on record. The plaintiff/appellant has brought the suit on the basis of the promissory note and mortgage deed. But the plaintiff/appellant fa

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