KRISHNA MENON Vs. DEVASIA

JUDGEMENT

(1.) Defendants 1 to 5 are the appellants in this second appeal, which arises from an order passed by the District Munsiff of Ernakulam in M.P. No. 498 of 1125 in O.S. No. 490 of 1119. That was a suit for redemption, and a decree for redemption was passed in favour of the plaintiff. When the decree holder sought to redeem the property the defendants filed M.P. No. 498 of 1125 for stay of the execution of the decree under S.4 Cl. (b) of Proclamation VI of 1124 (Cochin). The Proclamation applies only to certain classes of mortgages, viz., mortgages wherein interest provided for the mortgage amount is less than 40 per cent of the total rent fixed in the mortgage deed. The question for decision was whether the mortgage which was the basis of the decree came within this category. The first court held that the mortgage in question did not come within the category and that the decree would not fall within the ambit of S.4(b) of the Proclamation. The defendants appealed from this order. A preliminary objection was raised by the respondent relating to the maintainability of the appeal. The objection was that the order appealed against was one passed in the exercise of the jurisdiction vested in the court by virtue of a special statute and that it would not come under S.47 of the Code of Civil Procedure. Reliance was placed on the Full Bench decision of the Madras High Court in Nagappa v. Annapoorna (1941 Madras 235). This preliminary objection was upheld by the Additional District Judge and the appeal was dismissed on the ground that it was not maintainable. The learned Judge, therefore, did not go into the merits of the appeal.

(2.) I do not think that the view taken by the learned Judge is correct. The decision in Nagappa v. Annapoorna (1941 Madras 235) came up for consideration before the Privy Council in Adaikappa v. Chandrasekharan (1948 P.C. 12) and their Lordships disagreed with the view taken in that case. Their Lordships observed:

(3.) The question was again referred to a Full Bench of the Madras High Court in Desiekacharier v. Ramachandra Reddiar (1951 (6) D.L.R. Madras 108), and a view different from that taken in 1941 Madras 235 was taken in that case. In the circumstances, it cannot be said that 1941 Madras 235 has laid down the correct law. The dispute between the parties in this case clearly relates to the execution of the decree. It, therefore, comes under S.47 of the Civil Procedure Code and the order is appealable as a decree.