VARKEY Vs. KUNJURAMAN

JUDGEMENT

(1.) The suit was to enforce a simple mortgage, Ext. P1 dated the 31st January, 1944, executed by the first defendant in favour of the plaintiff, charging two items of properties in suit and to realise with interest the sum of Rs. 293/-, which the plaintiff had paid in discharge of the decree in O. S. 466 of 1953 charged on item 2. On the 4th September, 1947, the second defendant, the Travancore Forward Bank Ltd., which is now amalgamated with the second respondent, the State Bank of Travancore, took a simple mortgage of item 2 from the first defendant, afterwards obtained the decree thereon in O. S. 94 of 1124, purchased that item, in execution and went into possession under Ext. D2, delivery list dated the 5th July, 1956. On the 3rd December 1948, the 3rd defendant, the South Indian National Bank Ltd., which was later amalgamated with the Bank of New India Ltd., which in its turn is amalgamated with the State Bank of Travancore Ltd., took a simple mortgage of both items of properties and obtained the decree Ext. D.8 in O. S. 104 of 1124, On the 16th September, 1955, the plaintiff took a sale deed Ext. D1, from the first defendant for both items in purported settlement of Ext. P1, with also a provision to discharge the decree in O. S. 466 of 1953. The plaintiff accordingly paid Rs. 293/- in discharge thereof, under Ext. P2 receipt of the same date. In the plaint in the present suit, the plaintiff disclaimed the benefit of the purchase by Ext. D1, in view of the court purchase of item 2 by the second defendant, but relied upon it as an acknowledgment of Ext. P1 to save limitation for enforcing it.

(2.) Defendants 2 and 3 contended chiefly, that by the acceptance of Ext. D1, the debt under Ext. P.1 became extinguished and that the suit is barred by limitation, the acknowledgment in Ext. D1 being ineffectual. There was a claim by the 7th defendant to a plot of 16 cents in item 1. The Munsiff held in favour of the plaintiff and gave him a decree, for the realisation under Ext. P.1, of "Rs. 2719/- with interest at 6% per annum from the date of suit and costs from plaint schedule items 1 and 2 but excepting 16 cents from item 1 which belongs to the 7th defendant" and also for "the realisation of Rs. 319.25, the amount claimed in the B valuation of the plaint with interest on Rs. 293 at 6% per annum from the date of suit by sale of plaint item 2 as a first charge on the same." On appeal by defendants 2 & 3, the Additional District Judge accepted the contentions raised by them and dismissed the suit. This second appeal is by the plaintiff.

(3.) The first question to decide is, whether the plea of extinguishment of Ext. P1 by reason of Ext. D1 is valid. Ext. D1 was executed after the Transfer of Property Act came into force in the concerned area. S.101 of that Act enacts: