THOMA Vs. DEVASIA

JUDGEMENT

(1.) Section 11 of the Kerala Agriculturists Debt Relief Act, 1958 comes up for consideration in this Civil Miscellaneous Appeal. The appellant executed a possessory mortgage for Rs. 550/- in 1105. For Rs. 400/- out of the mortgage money the usufruct from the mortgaged property was allowed to be appropriated towards interest and for the balance of Rs. 150/- the mortgagor undertook to pay interest at 12 per cent per annum. The interest so agreed to be paid was kept in arrears. O. S. No. 257 of 1951 was filed for redemption of the mortgage, wherein a decree for redemption was also passed. Subsequently the Debt Relief Act came into force and the mortgagor-decree holder in the redemption suit filed an application under S.11 of the Act. The Trial Court allowed the application holding that the mortgagor was bound only to deposit Rs. 275/- being half the mortgage money, and Rs. 75/- towards interest, being half of Rs. 150/-, which is the portion of the mortgage money for which the mortgagor undertook to pay interest personally. The Trial Court also gave certain directions regarding the value of improvements payable to the mortgagees and the mesne profits recoverable by the mortgagor. The mortgagees took up the matter in appeal and the learned District Judge of Kottayam reversed the findings of the Trial Court and remitted the application for fresh disposal in the light of the observations contained in his judgment. The Civil Miscellaneous Appeal disputes the correctness of the order of remand by the learned District Judge.

(2.) The first point for consideration is whether the learned District Judge is correct in directing the mortgagor to file a separate suit under S.11. This question has become academic, because S.11(2) has subsequently been amended by Act II of 1961, where under an application is competent. In view of the amendment the appellant need not file a separate suit. The further question is whether he is bound to pay court fee on this application as for a suit for redemption. The learned advocate of the appellant contends that the appellant has already filed a suit for redemption paying full court fee on the whole mortgage amount and therefore the appellant need not pay court fee over again as contemplated by sub-section 3 of S.11. S.11 applies to subsisting mortgages and the procedure contemplated by that section is as if a suit for redemption is filed. Therefore, if the appellant seeks to claim benefit of S.11 treating the mortgage as still subsisting, then he has to pay court fee as contemplated by sub-section 3 thereof on his application as if it were a suit for redemption. The fact that he has already paid court fee in a previous redemption suit is of no avail. Thus the appellant has to pay court fee as contemplated by sub-section 3 of S.11.

(3.) The next question (and this is the major question) is regarding the amount to be deposited under sub-section 2 of S.11. According to the learned advocate of the appellant, the appellant is bound to deposit only one half of the mortgage amount, i. e., Rs. 275/- and one half of that portion of the mortgage money, for which the appellant undertook to pay interest personally, that is Rs. 75/-, being half of Rs. 150/- for which he agreed to pay interest separately. On the other hand, the learned advocate of the respondents contends that under S.11(2)(b) the appellant has to deposit all the arrears of interest, which will amount to above Rs. 1,800/-. It is this controversy that has been seriously pressed before me.