M.L. Jain, J.

1. The facts of this appeal are that the respondent Md. Shafi filed a suit on 27-11-70 for redemption of a three storeyed house situated in Girdikot, Jodhpur. There were 10 mortgage deeds executed in respect of this properly in favour of Hira Lal, who died during the pendency of the suit and is now represented by his widow Mst. Ram Nivasi The mortgages were executed during the period 13-7-47 to 15-12-58 The learned Additional District Judge, Jodhpur, by his judgment dated 29-4-74 decreed this suit for redemption and in stead of passing a preliminary decree passed a final decree with costs that the defendant shall at the expenses of the plaintiff execute a deed of acknowledgment of the amount due or shall execute a deed of reconveyance and shall also return all the mortgage deeds produced in the Court and after the time of appeal had expired the defendant shall deliver the possession of the property to the plaintiff. The learned Additional Sessions Judge held that out of the total amounts said to have been advanced on various mortgages, no amount of Rs. 1000 was paid to the mortgagor against the mortgage deed Ex. A4 dated 25-12-48 and out of the amount of Rs. 3,000/- said to have been advanced against the mortgage deed Ex. A6, dated 28-9-56 Rs. 500/- only were paid to the mortgagor. The learned Additional District judge also disallowed the amounts of Rs. 5,000/- against Ex. A7 dated 22-12-56 and Rs. 1,800/- against Ex. A8 dated 26-9-57 because these sums were not cash advances but against amounts of interest capitalised. The trial Judge, therefore determined the principal amount at Rs. 10,499/-. The trial court further came to the conclusion that the amount of rents and profits received by the mortgagee is not less than Rs. 23,012.31P. Since under the provisions of section 27 of the Rajasthan Money Lenders Act, 1963, the mortgage was not entitled to more than the amount of the principal, nothing remains to be paid by the plaintiff mortgagor. It was also contended before the learned Additional District Judge that Md. Shafi alone could not file the suit for redemption as besides him there were Nayaz Mohammed, Zafar Mumtaz, Abdullatif & Abdul Hakim who had an interest in the right of redemption and were necessary parties. The learned Additional District Judge held that the defendant led no evidence to prove that these persons were alive, while Md Shafi (PW 1) has deposed that these persons have migrated to Pakistan and have not been heard of being alive within the last 10 years nor have any letters been received from them. Under Section 180 of the Evidence Act no presumption of their being alive can be drawn. The learned Additional District Judge, therefore, held that in the absence of evidence led by the defendant it was to be held that the afore mentioned persons were not alive. He also observed that they were not necessary parties either.

2. Aggrieved by the aforesaid findings the defendant mortgagee has filed this appeal. The plaintiff-mortgagor has also preferred cross objections under Order 41, Rule 22 CPC. The main prayer in the cross-objection is with regard to a decree of refund of excess amount received by the defendant.

3. I have heard arguments. The first contention of the learned counsel for the appellant is with regard to the non joinder of parties. Whenever an objection in this behalf was raised the plaintiff added three women as parties but in respect of other persons, his contention was that they were neither necessary parties nor were they heard of being alive. The learned counsel for the appellant urged that under section 107 of the Evidence Act, the defendant was only required to show that the aforesaid mentioned persons were alive within the previous thirty years. It is for the plaintiff to establish the fact on the basis of which the afore mentioned persons could be held to be dead under section 108 of the Evidence Act and since this has not been done it was necessary as required by Order 34, Rule 1 CPC to bring them on record. The issue which was framed by the trial court was as follows: "(1) Whether Navaz Md., Jafar, Mumtaz, Abdul Latif, Abdul Hakim being alive, are necessary parties to the suit? The issue clearly took it for granted that these persons were alive. The defendant was simply required to show that they were necessary parties. It was a purely legal issue If the plaintiff contended that the presumption under section 107 should be drawn, then it was not Sufficient to prove that letters were not received from the aforesaid persons. He should have proved further that he was normally expected to hear of them but has not done so for a period of not less than seven years. The learned counsel relied upon Lal Chand Marwari vs. Mahant Ramrup Gill: AIR 1926 PC 9. Their Lordships of the Privy Council observed as follows:-

"

"It is constantly assumed that where the period of disappearance exceeds 7 years, death, which may not be presumed at any time during the period of seven years may be presumed to have taken place at its close. This course is not so. The presumption is the same if the period exceeds seven years The period is one and continuous, though it may be divisible into three or even four periods of seven years. Probably the true rule would be less liable to be missed, and would itself be stated more accurately, if, instead of speaking of a person who had not been heard of for seven years, it describes the period of disappearance as one of "not less than seven years."

4. The argument of the learned counsel of the appellant has been met by the learned counsel for the respondent by urging that there was nothing misleading in the issue as framed and the question of making the aforesaid persons as parties arises only if they are alive and if they were necessary parties. The learned counsel submitted that they were neither alive nor were necessary parties. Moreover, these persons had migrated to Pakistan and as a matter of fact their interests had vested in the Custodian and the Custodian not only confirmed the mortgages but also released the property from his possession and restored it to the defendant. The Evidence Act clearly lays down that if a person has not been heard of by persons who would have normally done so within a period not less than seven years then such a person shall be deemed to be dead and the burden is shifted to the person who affirms that he is alive. To my mind, there being no evidence to the contrary led by the defendant, there should be no reason why the evidence of the plaintiff' Md Shafi be not relied upon in this respect. The learned counsel for the respondent has further contended that if the integrity of the mortgage it not disturbed or broken, then any of the mortgagors a person having an interest in redemption can bring a suit for redemption. This is such a well established proposition that there is not much need of any authority to be cited in this respect. It is however, sufficient to refer to Mirza Yadalli Beg vs. Tukaram: AIR 1921 PC 125 which stated that it is not law in India that one of several mortgagors cannot redeem more than his share unless the owners of the other shares consent or do not object. Subject to proper safe guarding of the right to redeem which these owners may possess, one of several mortgagors can redeem the entire mortgage. I, therefore, see no force in the first contention.

5. The learned counsel for the appellant next submitted that the learned Trial Judge was bound to make a preliminary decree in the mortgage suit as required by Order 34, Rule 7 CPC which provides that in a suit for redemption if the plaintiff succeeds the court shall pass a preliminary decree. It is true that ordinarily the court must in a redemption suit pass a preliminary decree but it is after all a rule of procedure and it is not necessary that it must be adhered to in all cases. In Roshanlal vs. V. Singh: AIR 1922 All 479 the learned Judge remained that "after considering provision of Rules 7, 8 and 9, I infer that there might be cases when the court finds that the mortgagee has been paid, a decree for redemption can be passed at once. Even if a preliminary decree were passed and followed by a final decree, the result would be only a prolongation of the proceedings without any good being done to either party." It appears to me that O.34 R.9 authorises such a course. Where the court finds that nothing is due to the defendant or that he has been overpaid, then notwithstanding anything in Rules 7 and 8, the court shall pass a decree directing the defendant, if so required, to retransfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be but in posses ion of the mortgage property. This is more or less what a final decree under Rule 8 does direct. If it were not the intention to dispense with a preliminary decree, there was I feel, hardly any need for inserting Rule 9 with a non- obstante clause. I, therefore, reject the contention of the learned counsel for the appellant.

6. The third contention is with regard to the amount disallowed by the learned Additional District Judge. There is no dispute that the amounts of Rs. 5,000/- of Ex. A7 & Rs. 1,800/- out of the total of Rs. 2000/- of Ex. A8 are admittedly amounts of interest and have not been paid in cash. According to the definition of 'loan' as given in clause (9) of section 2 of the Rajasthan, Money Lenders Act, 1963, 'loan' means an advance at interest whether of money or in kind. It further excludes certain categories of advances with which we are not here concerned. The learned Additional District Judge was of the view that this amount of capitalised interest will be a loan but under section 27 of the Rajasthan Money Lenders Act, 1963, these sums not being principal amounts cannot be allowed I will be discussing this point a little later in this judgment. Before doing that, I would like to discuss the other two amounts which were also disallowed by the learned trial Judge. The first one is in regard to the mortgage deed Ex. A4 dated 25-12-49. The mortgage deed mentions that the money was being borrowed for the marriage of Abdul Hakim and that Rs. 200/- were deducted towards the amount of security of Abdul Rahman and Rs. 800/- were taken in cash. Before the Registrar, the mortgagors admitted the whole amount. The learned trial Judge disallowed the entire amount on the ground that no receipt of this amount unlike the receipts produced in case of other mortgages was produced. The mortgagee produced Khatas Ex. A35 and Ex. A36 but did not produce the corresponding cash books even though admittedly such cash books were maintained by the munib of the mortgagee. The mortgagee Hira Lal was in a dominant position to make the mortgagors to admit anything and one should not be surprised if this amount was an amount of capitalised interest. He held that this deed was without consideration. These findings of the learned District Judge appear to me wholly misconceived. To dub this amount as without consideration is an incorrect understanding of the law. Even if the amounts were simply of interest, it was a good consideration. Moreover, when the mortgagors have admitted before the Registrar that Rs. 1,000/- have been received by them and the deed also shows an acknowledgement of the mortgagors that the amount had been received it two installments in cash, is a good piece of evidence in favour of the mortgagee. Unless it is controverted by good evidence led by the mortgagor, the learned trial Judge, was not justified in disallowing the amount of Ex. A4.

7. The second amount disallowed pertains to Ex. A6 dated 28-9-56. The learned trial Judge disallowed a sum of Rs. 2,500/- out of the total consideration of Rs. 3000/-. The contention of the mortgagor was that Rs. 5,00/- only were paid in cash, while Rs. 2,500/- were of past interest Ex. A 6 shows that Rs. 5,00/- were paid before the Registrar, while the remaining amount of Rs. 2,500/- was acknowledged to have been received earlier. The trial Judge argued that it this amount was also paid in cash, then there was no reason why it was not paid before the Registrar. The mortgagee also did not obtain any receipt of this amount nor could he furnish a satisfactory explanation as to why he did not take a receipt. No cash books were produced and an adverse inference was liable to be drawn against the mortgagee. Here, again the learned trial Judge fell into an error in the matter of appreciation of the evidence. Even if no cash books were produced and when the amount was admitted to have been received before the Registrar, there was a burden cast upon the mortgagor to establish that Rs. 2,500/- were not paid in cash but it was the amount of the accumulated interest. I, therefore, reverse the finding of the learned trial Judge in respect of this amount. I held that the total amount in cash advanced to the mortgagor was Rs. 13,999/-.

8. The mortgagee claims a total amount Rs. 59,605/1/7 out of which he had given a credit of Rs. 29,812/5 and showed a balance of Rs. 29,792/12/7. The learned counsel for the respondent contended that the appellants could not recover more than Rs. 13,999/- principal and Rs. 13,999/- interest under section 27 of the Rajasthan Money Lenders Act. The learned counsel for the appellant drew my attention to clause (15) of section 2 of the said Act which defines the expression "suit to which this Act applies." This definition provides that the said expression means a suit inter alia for the redemption of any security given alter the date on which this Act comes into force in respect of any loan made either before or after the said date. It was urged that the security in this case was given before the Act came into force, and therefore the Act will not apply to this suit. This argument cannot be accepted. The definition has been inserted because this expression has been used in some sections such as 11, 17, 26, 29 and 33 of the Act and it does not in any way imply that the Act applies only to the suits mentioned in clause (15) of section 2 of the Act.

9. Now, section 27 of the said Act was amended by Act No. 13 of 1976 which was published in the Gazette on February 13, 1976. In view of this Court's decision, in Durgadas vs. Kanhaiya Lal: 1970 WLN 563 the Court has to take note of this amendment even at the appellate stage & it is entitled to apply the law as is in force at the date of the decision by it. The decision has been based upon observations of the Federal Court in Lachmeshwar Prasad vs. Keshwar Lal: AIR 1941 FC 5 & of the Supreme Court in Mohanlal Chuni Lal vs. Tribhuvan: AIR 1963 SC 358. It is needless to go into these celebrated decisions & it must be taken to be a settled law that the Appellate Court has to apply the law as it finds on the date of the decision. I may be permitted to add that this principle will apply only if the law is retrospective in operation. Let us turn to section 27 as it stands after the amendment. It is as follow:

"27 (1) No money lender shall recover towards the interest in respect of any loan advanced by him, an amount in excess of the amount of principal.

(2) Any loan in respect of which the money lender has realised from the debtor an amount equal or more than' twice the amount of the principal, shall stand discharged and the amount if any, to realised in excess of twice the amount of loan shall be refunded by the money lender to the debtor:

Provided that no refund shall be made if such excess amount has been realised prior three years from the date of commencement of the Rajasthan Money Lenders (Amendment) Act, 1976."

This section provides that no money lender can be allowed to recover toward interest in respect of any loan advanced by him, an amount in excess of the amount of principal. It means it is retrospective in operation. Principal has been defined to mean the amount actually advanced to the debtor. It has already been stated that the total amount advanced to the debtor is Rs. 13,999/-. The mortgagee can recover similar sum by way of interest. That means the total recoverable amount by the mortgagee is Rs. 27,998/. The next slept is to find but how much amount has been recovered by the mortgagee. The learned trial Judge found that in any case the mortgagee has received a sum by way of rents and profits not less than Rs. 23,012.31p. He has also held that as a matter of fact it has been proved that the mortgagee had received. Rs. 29,026,51p. The findings of the learned trial Judge in respect of this amount seems to be somewhat incorrect. According to the statement of receipts submitted by the mortgagee, he received Rs. 23,012.3p. The Munib Ugamraj DW. 61 has admitted receipt of Rs. 3,927.10p. between the period 2-3-71 to 8-5-73. Another Rs. 87.10p. were received by Ugamraj, D.W. 6. At average rent from 8-5-73 to 29-4-74 roughly another Rs. 1,800/- should have been received. The respondent has correctly calculated this amount at Rs. 28,411.41p. Thus the mortgagee has received an amount of Rs. 413.41p. more than what was allowed by law and the debt in question stood discharged.

10. In his cross-objection the mortgagor has prayed for a decree for the surplus amount that may be found to have been received by the mortgagee. According to the proviso to aforesaid section 27 Which proviso could not have been drafted in a more confusing manner appears to say that such refund is not possible if such excess had been realised any time prior to three years immediately preceding the date of the commencement of the Rajasthan Money Lenders (Amendment) Act, 1976, that is 13-2-76. The excess amount of Rs. 413.41p. has been realised after 13-2-72 and is therefore recoverable by the plaintiff. I, therefore, dismiss the appeal with costs and allow the cross-objection to the extent that the plaintiff shall be entitled to a refund of Rs. 413.41p. from the defendant.