VARKEY Vs. SANKARAN

JUDGEMENT

(1.) The respondent, the assignee of the mortgagor sued, claiming the benefit of S.11 of Act XXXI of 1958 to redeem the mortgage, the right under which was vested in the appellant by assignment. The claim was allowed and redemption decreed accordingly in the two courts below. In second appeal, it was contended for the appellant, that being the assignee of the mortgagor the respondent is not entitled to the benefit of S.11 of the Act, relying on Krishnan Nair v. Abdu 1964 KLT 94 decided by a full bench of this court under the analogous provision in S.11A of the Act. This contention was not advanced in either of the courts below or even in the appeal memorandum in this Court, but being a pure point of law and so closely related to the decision of the full bench, I allowed it to be argued.

(2.) Prior to the decision of the full bench it was held in Raghavan Nair v. Daniel 1959 KLT 1232 , that a mortgagors assign is entitled to the benefit of S.11 of Act XXXI of 1958. Before the full bench the question was whether the assignee of the person who granted a melpattom was entitled to the corresponding relief under S.11A of the Act. The full bench relied principally on S.2(fff) of the Act, which was introduced in it by the amending Act of 1961 and which is as follows:-

(3.) This entails a dismissal of the suit as framed, but in view of the fact that the full bench decision was rendered only recently and that this point had not been taken either in the pleadings or in the courts below, I consider that it is not proper to dismiss the suit without giving an opportunity to the respondent to have the plaint amended, if so advised. In the result, subject to the findings on other points being affirmed, the decree allowing redemption in accordance with S.11 is hereby set aside and the case is sent back to the first court, for passing a fresh decree in the light of the observations made above, after giving the respondent an opportunity to have the plaint amended, if so desired. I make no order as to costs in this court.