RAVI DAMODARAN NAMBOODIRIPAD Vs. THATOHUDAYA KAIMAL

JUDGEMENT

(1.) THIS appeal arises in execution of a mortgage decree. At execution, Rs. 11,000 odd have been deposited as the price of redemption decreed, and the property has been delivered to the plaintiff. The 12th defendant, the mortgagee on record, prayed for payment of the amount in Court less what has been claimed out of it by the other defendants. In other words, the prayer was only that the undisputed portion of the amount in Court that belonged to him might be delivered to him. The Court below dismissed that prayer, directing him to a fresh suit therefor. Hence this appeal.

(2.) THE facts show no justification for the order of the Court below. If the mortgagee, after surrender of the property to the mortgagor, claimed to be paid only such portion of the mortgage-amount that is beyond dispute by the other parties in the case, we do not see why the same was not allowed forthwith.

(3.) THE practice found in some Courts of decreeing redemption to the plaintiff-mortgagor, leaving the rival claims to the mortgage-amount of the defendants, the mortgagees and the sub-mortgagees, to be settled in a fresh suit is not warranted in law. Order 34, Rule 4 (4), C. P. C. directs that, in suits for sale where "persons deriving title from. . . mortgagees are joined as parties, the preliminary decree. . . . shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in. . . Form No. II. . . with such variations as the circumstances of the case may require. " A like provision in regard to adjudication of the rights and liabilities of sub-mortgagees occur in Order 34, rule 3 (3), C. P. C. as regards suits for foreclosure. See Form No. XI in Appendix D to the Code of Civil Procedure and Vengannan Chettiar and Sons v. Ramaswami pillai, AIR 1943 Mad 498. There is, however, no provision in Order 34 as to whom the price of redemption lodged in Court shall be given. But as "the mortgagor's right of redemption and the mortgagee's right of foreclosure or sale are coextensive" (Mulla's Transfer of Property Act, 4th Edn. P. 378), the procedure in regard to payment of the price of redemption cannot be different from those regarding the proceeds of sale of the mortgaged property; and therefore an adjudication as to the relative rights of the mortgagee and the sub-mortgagee becomes necessary in redemption suits as well. The AIR Commentaries on the code of Civil Procedure in Note No. 4 to Order 34, Rule 7 puts the position succinctly thus: