ABUBACKER Vs. NARAYANA MENON

JUDGEMENT

(1.) C. R. P. No. 905 of 1959 is by the mortgagee and CRP. 1092 of 1959 by the mortgagor under a usufructuary mortgage dated 22-4-1954. The mortgage related to certain properties outstanding with tenants. On the date of the mortgage, the mortgagor executed a lease-back agreeing to pay a fixed rent annually. Subsequently the mortgagee filed O. S. No. 216 of 1956 for arrears of rent due to him as per the lease-back and for surrender of the mediate possession retained by the mortgagor. That was decreed on 26-9-1956 and in execution thereof the mortgagee took symbolical possession of the mortgaged properties on 28-7-1957. Matters remained thus till the institution of O. P. No. 72 of 1958 by the mortgagor on 25-11-1958 for redemption of the mortgage under S. 11, sub-sections 2 to 5 of the Kerala agriculturists' Debt Relief Act (Act XXXI of 1958) which will be referred to hereinafter as the Act. In Para. 3 of the petition it was expressly stated that the mortgagee having taken possession of the property in execution of the decree in O. S. No. 216 of 1956 the lease-back was extinguished and the only relation that subsisted between the parties was the usufructuary mortgage of 22-4-1954 and also that the mortgagee had possession as per the delivery proceedings in that case. Subsequently on 7-7-1959 the mortgagor sought to amend the Original petition No. 72 by the inclusion of a prayer for relief under sub-section 6 of s. 11 of the Act. Even then he had no case that the lease-back was subsisting, or that the mortgagee was not in possession of the property or that the delivery proceedings had in O. S. 216 of 1956 were inoperative. The averments made in para 3 of the O. P. referred to above were retained without any amendment whatever. The court below negatived the mortgagor's claim for relief under sub-section 6 of S. 11 of the Act, and proceeding on the basis of there being no lease-back allowed the mortgagor to redeem the property on deposit of one-half the mortgage amount under sub-section 2 of S. 11 of the Act. But, in doing so, the learned Munsiff did not pass a decree as required by sub-section 3 of S. 11 of the Act. C. R. P. 905 of 1959 is mainly concerned with this omission in the order. The C. R. P. 1092 of 1959 has been preferred by the mortgagor against that part of the order which disallowed his claim to discharge the mortgage under sub section 6 of S. 11 of the Act.

(2.) S. 11 of the Kerala Agriculturists' Debt Belief Act provides:-' (1) (2) Notwithstanding that the period of the mortgage has not expired, the mortgagor shall be entitled, subject to the provisions of sub-section (3), to recover the property mortgaged on depositing in the court (a) one half the mortgage amount;. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (3) the court shall pass a decree allowing the mortgagee to recover by sale of the mortgaged property the balance amount in ten equal half-yearly instalments together with interest the 1st instalment being payable within a period of six months from the date on which the mortgagor recovered possession of the property mortgaged. It . . . . . . . . . . . . . . . . . . . Admittedly the mortgagor has deposited one-half of the mortgage amount along with the O. P. and therefore he is entitled to redemption and surrender of the property as per the provisions of sub-sections [2] to [5] of S. 11 of the Act, and that has been allowed by the court below. The omission of the court below to pass a decree for the balance of mortgage amount has to be rectified. The impugned order so far as it goes is upheld. The court below will amend the order by incorporating therein a decree for the balance of the mortgage amount as provided for m sub-section [3] of S. 11 of the Act.