NARAYANA JOIS Vs. ALAMELAMMA

JUDGEMENT

(1.) The defendant in original suit 637 oi 1964 on the file of the First Munsiff, Mysore, is the appellant in this second appeal. The plaintiffs who are two in number instituted the above suit originally in the Court of the Subordnate Judge, Mysore in 1963. The suit was thereafter transferred to the file of the First Munsiff, Mysore, by virtue oi the provisions of the Mysore Civil Courts Act, 1964. The first plaintiff executed a usufructuary mortgage deed in favour of the defendant on 25-9-1951 for a sum of Rs.3,000 offering the plaint schedule house as security therefor. Later on she sold the house in favour of plaintiff-2. Both the plaintiffs instituted the above suit lor redemption of the above mortgage, it is not disputed that under the mortgage deed only a sum of Rs.283 was paid in cash to plaintiff-1.

(2.) The balance of the amount was allowed to be retained 'by the mortgagee for the purpose of discharging certain earlier debts which plaintiff-1 had incurred from one Nagarathnamma and one Y. P. Krishna Jois. The plaintiffs instituted the suit for redemption since the defendant did not allow redemption by private negotiations. The defendant in his written statement contended that the suit was premature and not maintainable since plaintiff-1 who had executed a further mortgage in respect of the very same property in favour of the defendant for a sum of Rs.1000 on 6-9-1953 could not redeem the suit mortgage alone without redeeming the second mortgage also. In support of the above plea, the defendant relied on the recital in the second mortgage deed dated 6-9-1953 to which reference will be made later on at the appropriate stage. While admitting that he had not discharged the debt due to Nagarathnamma, the defendant pleaded that he had paid a sum of Rs.1000 to Y. P. Krishna Jois, and, therefore, he was entitled to recover under the suit mortgage a sum of Rs.1283. The trial Court framed several issues in the suit. After hearing the parties it dismissed the suit holding the suit as being premature. The plaintiffs preferred an appeal against the judgment and decree of the learned Munsiff in Regular Appeal No.202 of 1967 on the file of the Civil Judge, Mysore. That appeal was allowed and the suit for redemption was decreed.

(3.) The lower appellate Court held that only a sum of Rs.283 was due under the mortgage. It directed that the defendant should also render accounts with regard to the profits he might have derived from the suit house. Aggrieved by the judgment and decree of the lower appellate Court, the defendant has preferred this second appeal. In this second appeal, three questions arise for consideration : (i) Whether the suit for redemption of the mortgage which was executed on 26-9-1951 was maintainable without the plaintiffs redeeming the second mortgage which was executed on 6-9- 1953; (ii) Whether the defendant had discharged the debt due to Y.P. Krishna Jois and whether he is entitled to recover the sum paid to Y.P. Krishna Jois from the plaintiffs; and (iii) Whether the defendant is liable to render accounts with regard to the profits and rents realised from the suit property.