BHASKARAN PILLAI Vs. MATHEW

JUDGEMENT

(1.) In this Civil Revision Petition and the Civil Miscellaneous Appeal, the orders of the two subordinate courts are challenged by the petitioner, who was the applicant in A. D. R. P. No. 14 of 1961 filed under Kerala Act 31 of 1958, and the defendant in O. S. No. III of 1961, on the file of the Changanacherry Munsiffs Court. For purpose of convenience, the parties will be referred in the course of this judgment in accordance with the status occupied by them in the suit O. S. No. III of 1961, either as plaintiff or the defendant, as the case may be.

(2.) The defendant and his sister had executed a usufructuary mortgage in favour of the respondent plaintiff under Ex. P 1, dated 9th December 1950. On the same date, there was a lease back in favour of the defendant, who was one of the mortgagors, and also in favour of the husband of the other mortgagor, namely the sister of the defendant. It is also seen that on 28th November 1953 the defendant alone took the entire properties, which were subject to the mortgage under Ex. P 1, on a lease back arrangement.

(3.) There appears to have been a settlement of accounts in respect of the rent due by the defendant on 14th September 1956; and it is the case of the plaintiff respondent that according to the said settlement of accounts, the defendant had accepted liability to pay the balance amount of rent viz., 200 paras, 5 edangazhies of paddy as on 14th September 1956. On the same date, the defendant also appears to have borrowed from the plaintiff a sum of Rs. 140. To recover both these amounts, as well as arrears that had accrued due up to 1961, the plaintiff instituted the suit O. S. No. III of 1961 on the file of the Munsiffs Court of Changanacherry against the defendant. The defendant, in turn, filed A. D. R. P. No. 14 of 1961 before the same Munsiffs Court, for relief under sub-s.(6) of S.11 of Kerala Act 31 of 1958. The relief claimed by the defendant was opposed by the plaintiff; equally, the relief claimed by the plaintiff in the suit was also opposed by the defendant. The Trial Court held that the defendant is entitled to relief under S.11(6) of Act 31 of 1958; and on that basis, allowed the claim made by the defendant in A. D. R. P. No. 14 of 1961 and permitted him to pay the amounts under the provisions of Act 31 of 1958. So far as the suit is concerned, it will be seen that the claim for arrears of rent made by the plaintiff was dismissed, because the defendant had been granted relief in A. D. R. P. No. 14 of 1961 under S.11(6) of the Act. But so far as the claim for payment of cash of Rs. 140 borrowed by the defendant is concerned, the plaintiff was given a decree for that amount together with interest at 6 per cent per annum.