KUNHI PATTI AMMA Vs. UTHA AMMA

JUDGEMENT

(1.) THE appeal filed by the plaintiff arises out of a suit for redemption. THE trial judge found that Ext. BI is a usufructuary mortgage and passed a preliminary decree in favour of the plaintiff for redemption of some of items in the plaint schedule on payment of the proportionate mortgage amount of Rs. 2479. 20 Ps. THE value of improvements was directed to be ascertained in the final decree proceedings. THE learned appellate judge in the appeal by the defendants agreed with the trial court that Ext. BI is a mortgage and directed the valuation of the paddy portion of the mortgage amount at the rate prevailing on the date of deposit and directed the ascertainment of the value of improvements and then passed the preliminary decree. THE case was remanded to the trial court for the purpose, THE complaint of the plaintiff in the second appeal relates to he direction; regarding the valuation of the paddy portion of the mortgage amount. Ext. B1 is for Rs. 1425/- and 1400 paras of paddy. THE finding that Ext. BI is a mortgage is not challenged by the respondents and the said finding has become final. THE learned counsel for the appellant relying on the decision in Kesava Pillai v. Narayana Pillai 1961 K. L. T. 246 contended that the paddy has to be valued at the rate which prevailed on the date of Ext. Bl. It was held by a learned Single Judge that for the purpose of S. 11 (2) to (5) the paddy portion of the consideration of a possessory mortgage, has to be valued at the rate prevailing on the date of the mortgage because of Explanation II to S. 2 (c) of act 31 of 1958. With great respect to the learned judge we cannot agree. S. 11 (2) to (5) of Act 31 of 1958 deal with redemption of possessory mortgages and recovery of possession of the property mortgaged. THE said provision does not deal with the discharge of any debt. THE word 'debt' is not used in S. 11 (2) to (5) of Act 31 of 1958 and Explanation II of S. 2 (c) is therefore not applicable for fixing the redemption price. We therefore hold that Kesavan Pillai v. Narayana Pillai 1961 K. L. T. 246 does not lay down correct law. Further there is also no proceedings under S. 11 (2) to (5) of Act 31 of 1958. In these circumstances, the principle in Ouseph v. Thomman 1954 K. L. T. 463, has to be applied and in that view the direction given by the appellate judge as to fixation of redemption price is right and cannot be interfered with. THE learned counsel for the defendants contended that his clients are entitled to the benefit of S. 4a (1) (a) of Act 1 of 1964 as introduced by Sections of Act 35 of 1969. We do not express any opinion on this matter. But we direct the trial court to consider the same before passing the preliminary decree in the case. THE second appeal is dismissed subject to the above observation. We make no order as to costs. Dismissed. . .