P LAKSHMINARAYAN Vs. K B PUNNAYYA

JUDGEMENT

(1.) Both these appeals arise from a mortgage suit. The appellant in Civil Appeal No. 745 of 1967 is the father and the appellants in Civil Appeal No. 132 of 1971 are his sons. The appellant in Civil Appeal No. 745 of 1967 as the karta of his family mortgaged a house situate in Tenali Municipality for a sum of Rupees 44,883/63 P. as per the registered mortgage deed Ex. A-1 dated 9-7-1953. The consideration for that mortgage included certain amounts borrowed by the mortgagor from the mortgagee in 1951 as per demand promissory notes Exs. A-2 to A-5.

(2.) To the mortgage suit the mortgagor as well as his sons were made parties. The mortgagor was exparte. His sons resisted the suit on various grounds. It is not necessary to refer to the grounds raised by the contesting defendants in resisting the suit. The only question with which we are now concerned is whether the mortgage debt is liable to be further scaled down under the provisions of the Madras Agriculturists Relief Act 1938 (to be hereinafter referred to as the Act).

(3.) The trial Court awarded a preliminary decree for the entire amount claimed in the suit with costs as against the 1/3d share of defendant No. 1 (the father). But it awarded a decree for Rupees 32,745/99 P. with proportionate costs as against the 2/3rd share of defendants 2 and 3. Defendant No. 1 did not appeal against the decree of the trial Court but defendants 2 and 3 appealed against the same. The appeal filed by defendants 2 and 3 was dismissed by the Andhra Pradesh High Court. Meanwhile defendant No. 1 applied to the trial Court under Section 151, Civil Procedure Code to amend the preliminary decree by giving him the benefit of the provisions in Section 14 of the Act. That application was dismissed. As against that order, he went up in revision to the High Court. The High Court dismissed his revision application. Thereafter he brought Civil Appeal No. 745 of 1967 after obtaining special leave from this Court. Civil Appeal No. 132 of 1971 was filed by defendants 2 and 3 against the decision of the High Court after obtaining special leave from this Court. Their grievance is that the debt due under the mortgage should have been scaled down further.