MEERANNAN MARIA UMMA Vs. CHACKO CHACKO

JUDGEMENT

(1.) The respondent held a prior hypothecation and obtained a decree thereon, without impleading the appellant who held a subsequent hypothecation and in execution of the decree, purchased the hypotheca and went into possession. The appellant also put her hypothecation in suit, impleading the respondent as the 2nd defendant and obtained the decree in execution of which this second appeal has arisen. In the suit by the appellant, the decree of the court of first instance was for the realisation of the amount from the property, but it was modified in several respects by the decree of the High Court dated the 15th February, 1956, passed in second appeal. This was the background in which the High Court passed the decree. The purchase by the respondent in execution did not bind the appellant, who was free to enforce her hypothecation, but as the purchaser of the equity of redemption, the respondent had the right to pay off the amount of the appellant's hypothecation, failing which he had to submit to redemption by her. Clause.6 of the decree of the High Court declared the right of the appellant to redeem the property on payment of the prior charge, and Clause.7 declared the right of the respondent to retain the property for himself on payment to the appellant of the amount of her charge including interest. Clause.11 with which this appeal is directly concerned, is as follows:-

(2.) The argument of learned counsel for the respondent was two-fold, first, that the decree of the High Court only restored or affirmed with modifications the decree of the first court, which was for the realisation by the appellant of the amount due to her from the hypotheca and second, that the respondent's liability arose and was related to the hypothecation in favour of the appellant and though payable now under decree of court, it had been incurred before the date of the Act. It seems to me, that both these arguments have to fail. Though the decree of the first court was restored by the High Court subject to modifications, these were so extensive as to supersede the unconditional liability under the decree of the first court, that it is now incumbent on the court, to determine the character of the liability solely by the terms of the High Court decree.

(3.) The second is no doubt an ingenious argument. It may be taken, that to constitute a debt as defined, the liability need not necessarily be personal and may arise out of a nexus with property and relate to it. Even so, as a prior hypothecate, no liability of the respondent can be traced to the appellant's hypothecation. After the purchase by the respondent in execution of his decree, he stepped into the shoes of the owner of the equity of redemption and it is only in that capacity, that his interests would be affected by any proceeding taken by the appellant. Even then, the respondent had the right to stand by his rights as a prior hypothecate without paying the appellant, leaving it to her to redeem him. Such in the nature of his liability. Subsequently, the rights and obligations of the parties became crystallised by the decree of the High Court. Assuming that there was an original liability of some form or character in the respondent, as to which I am by no means sure, that liability became superseded by the decree of the High Court. For the application of Act 31 of 1958, the crucial thing to consider, is the liability, if any, on the date of the Act under the decree which was passed earlier. I am therefore of the opinion, that after the passing of the decree by the High Court, the liability of the respondent remained contingent until he elected by his petition to make payment to the appellant. This liability was not a debt, as defined. The respondent is not therefore entitled to the benefit of Act 31 of 1958.