MOMAMMAD ABDUL KHADER IBRAHIM SAHIB Vs. CHIDAMBARAM MUDALIAR

JUDGEMENT

(1.) These are two consolidated appeals filed by the appellant against the judgment and order, March 13, 1964 of the High Court of Madras. The facts are these: one V.C. Chidambaram Chettiar mortgaged certain lands in Pudukottai State by two usufructuary mortgages in favour of one P.K. Madhava Rao. The first mortgage was for Rs. 6000/- and was executed on September 25, 1942. The second was for Rs. 5000/- and was executed on January 30, 1944. The lands were not given in possession of Mahadeva Rao but were leased back to the mortgagor who was to pay Rs. 540/- per year for the first mortgage and Rs. 502/- per year for the second mortgage. This represented interest at nine per cent on the two mortgages including the land revenue which was to be paid by the mortgagee. There was a personal covenant to repay the amount in one year. The mortgagor made defaults in payment of the yearly rent after September 26,1944 in respect of the first lot of lands. He also paid nothing towards rent of the second lot of lands except a small amount in 1944-45. The mortgagee was required to file suits to recover the amount. In 1948 the mortgagee filed two suits, first for Rs. 6441/- and the second for Rs. 5681/10/-. The first respondent in these appeals was added as a second defendant because he had purchased a part of the lands from the mortgagor. The original mortgagor was the sole defendant when the suits were filed. The other purchasers from the original mortgagor was also added later. A preliminary decree was passed on December 17, 1948 was also and the final decree followed in March 1949.

(2.) Pudukottai State merged in Madras Presidency and the execution was levied after the merger. In Pudukottai State there was an Act (Pudukottai Agriculturists Relief Regulation XV of 1938) which gave relief to the agriculturist debtors No Claim for relief was put forward in the suit under this Act. After the merger of Pudukottai State, Madras Merger States Act 35 of 1949 was passed & the Madras Agriculturists Relief Act was extended to Pudukottai State from Jan. 1, 1950. Section 6 of the Act 35, 1949 saved the application of the old Act when proceedings under it had commenced.

(3.) The original mortgager then filed two applications to scale down the decrees. The first respondent acted as his agent in the court. He did not claim any relief personally. These applications were rejected. The appeal was not pursued after the original mortgagor died. The decreeholder then assigned the decree to the present appellant. Some payments were made by the original mortgagor also before the assigment of the decree.