NARAYANAN NAMBOODIRI Vs. PARUKUTTY

JUDGEMENT

(1.) Though the amount involved is rather small, an important question of law relating to the application of the principles of salvage lien is raised in this second appeal. The plaint schedule property belonged to one Marimuthu, the predecessor-in-interest of respondents 1 to 5 (defendants 1 to 5). The said Marimuthu had mortgaged it to the appellant (plaintiff) for Rs. 3500/- as per document No. 1963 of 1964 of Vadakkancherry Registry Office. The appellant had filed O. S. No. 91 of 1969 of the Vadakkancherry Munsiff's Court as a mortgagee and obtained a decree for sale of the property. Prior to the mortgage executed in favour of the appellant the said Marimuthu had executed a mortgage of the same property in favour of the Cochin Land Mortgage Bank (the Bank). The said Marimuthu not having paid two instalments due to the Bank, it initiated proceedings under the Revenue Recovery Act for the realisation of the amount due to it by sale of the property. The appellant paid a sum of Rs. 700/- on 15-3-1969 and a sum of Rs. 834/- on 3-11-1969 to wipe off the arrears towards the two instalments in default, thus averting the sale. The appellant thereafter filed O. S. No. 118 of 1972 in the Munsiff's Court, Vadakkancherry for the recovery of the amounts paid by him to the Bank for discharging the liability of the respondents with interest and costs, claiming a charge on the property. Repelling the contentions of the respondents the Trial Court found that the amounts were actually paid by the appellant, that Court, however, held that the appellant was not entitled to a charge as he was only entitled to a personal decree for the reimbursement of the money paid by him on behalf of the respondents. He was given a decree for Rupees 834/- paid on 3-11-1969 with interest thereon against the assets of the deceased Marimuthu, if any, in the hands of respondents 1 to 5 and dismissed the suit for that part of the claim relating to the amount of Rs. 700/- paid on 15-3-1969, holding that it was barred by limitation. In A. S. No. 239 of 1974 the District Judge of Trichur has confirmed the decision of the Trial Court; hence this second appeal.

(2.) Sri. T. Unnikrishna Menon, the counsel for the appellant plaintiff, contended inter alia that the amounts paid by the appellant were for discharging the instalments defaulted by the respondents for averting the sale of the property and the consequential loss that might have been fallen on all concerned; that this was done at a time when he had a subsisting interest in the property, being a puisne mortgagee; and that, therefore, a charge decree with respect to the entire amount claimed in the plaint ought to have been granted to the appellant plaintiff by the Courts below. Sri. P. N. Krishnankutty Achan, the counsel for respondents 1 to 5, on the other hand sought to support the decision of the Courts below, contending that as a puisne mortgagee the appellant plaintiff's interest confined to the realisation of the money due to him under the simple mortgage executed in his favour; that his rights over the plaint schedule property were subject to the rights of the Bank over the property as a prior mortgagee; that he had already filed a suit and obtained a decree for sale of the plaint schedule property; and that it was subsequent to that the appellant had paid the amounts towards the two instalments due to the Bank for which he was entitled only to a personal decree for reimbursement, which would fall squarely under S.69 of the Indian Contract Act which reads as follows:--

(3.) The Privy Council had occasion to consider the application of the principles of salvage lien to cases arising from India, in Monohar v. Hazarimull, ( AIR 1931 PC 226 ). Whether the holder of a final decree for sale of the mortgaged property was entitled to maintain a separate suit to enforce a further charge against such property for payments made to prevent a sale for arrears of revenue which fell due after the passing of the final decree and while execution proceedings were pending was the question that arose for decision in that case. After having referred to an earlier decision of the Board in Nugenderchunder Ghose v. Sreemutty Kaminee Dossee (1800) 11 Moo Ind App 241 : 8 WR 17 (PC), in reversal of the decision of the Calcutta High Court ( AIR 1930 Cal 151 ) the Privy Council held: