KEMPE GOWDA Vs. LAKKEGOWDA

JUDGEMENT

(1.) These appeals are tne off-shoots of the decision of this Court in S. A. No. 182 of 45-46 which arose out of _a suit filed by the Respondent for a declaration of his right to and possession of the plaint schedule properties and in the alternative for a decree for sale on the foot of a mortgage deed marked Exhibit J. The facts which are not in dispute are fully stated in the judgment of that appeal and need only be briefly referred to, to appreciate the points in controversy.

(2.) The lands involved in this litigation formerly belonged to the family of one Ven-kata Rao and his sons. One of the sons of the said Venkata Rao filed a suit for partition of the family properties and during the pendency of the appeal preferred against the decree of the trial Court in that suit, a settlement appears to have been arrived at between the members of the family on the one hand and the creditors on the other. The terms of the settlement were embodied in a document styled composition deed dated 1-7-1934, by which certain properties of the family are said to have been given to the respective creditors in discharge of their claims. One of such creditors was Chikka Nagappa and sons to whom monies were due under three separate deeds of simple mortgage for satisfaction of which the suit properties besides others are said to have been absolutely transferred. Subsequent to the mortgages in favour of Chikkanagappa these properties were mortgaged with possession to P. S. Rama Rao. Defendant as assignee of this mortgage is in possession of the properties. The plaintiff as transferee from Chiknagappa sued defendant for possession of the properties, alleging that the mortgage debt of Rama Rao was satisfied by the composition deed and plaintiff was owner thereof. As an alternative to this relief, he claimed payment of the amount due under one of the three simple mortgage deeds Exhibit J executed in favour of Chikkanagappa. The defendant contended that the composition deed cannot be treated as a conveyance and, in any case, since Rama Rao did not consent to the composition it does not affect his rights under the possessory mortgage. Rejecting these contentions the trial Court granted a decree for possession. The learned Subordinate Judge, on appeal, dismissed the suit in toto but this Court disallowed the claim for possession of the properties on the view that Rama Rao was not bound by the composition and as such the defendant as assignee of the mortgage was entitled to be in possession of the properties but granted a decree with respect to the simple mortgage under Exhibit J by directing sale of the properties now in dispute in the event of the defendant not making payment of the amount to be fixed under Section 82 of the Transfer of Property Act by taking into account the amount due under the mortgage deed and the value of the suit properties and of others which were subject to the mortgage. In pursuance of this direction, the learned Munsiff held that the amount recoverable from the suit properties is Rs. 1073/- and this is confirmed in appeal. The defendant has preferred S. A. No. 6 of 49-50 questioning the correctness of the amount fixed.

(3.) The other appeal R. A. No. 154 of 48-49 arises from a suit filed by the same plaintiff subsequent to the decision in the former second appeal for redemption of the mortgage effected in favour of Rama Rao and now assigned to the defendant. The plea of the defendant inter alia was that the suit was not maintainable by virtue of the claim and the decision in the former suit. The learned Subordinate Judge decreed the suit and the defendant has as in the other case appealed.