PANNEL JONI Vs. VELAYUDHAN NADAR

JUDGEMENT

(1.) APPELLANTS are the legal representatives of the deceased plaintiff in O. S. 282 of 1119 on the file of Kuzhithura Munsiff's court. The suit is for reimbursement of money deposited by plaintiff in O. S. 704 of 1112 in discharge of the liability of defendant No. 1 under the decree in that case. The suit is filed on the following allegations: Plaintiff obtained a decree against defendant No. 1 and others in O. S. 284 of 1108 for recovery of the amount due to him under a mortgage of 1088 and 2 purakadams of 1095 and 1105 executed by defendant No. 1. He purchased the properties in court auction and obtained delivery on 10. 3. 1112. Subsequent to the mortgage of 1088 and purakkadom of 1095 defendant No. 1 executed a hypothecation bond in 1104 in respect of the properties to P. W. 1 for chitty money due to him. P. W. 1 assigned the bond to P. W. 2 and he obtained a decree on the bond in O. S. 704 of 1112 on 31. 1. 1114 for 589 odd fanams. In that suit there was dispute between plaintiff and P. W. 2 about the priority of plaintiff's charge and the decree provided that the properties could be sold only subject to plaintiff's charge. Defendant No. 1 did not pay off the decree amount in O. S. No. 704 of 1112 and p. W. 2 therefore proclaimed the properties for sale subject to plaintiff's charge. When the properties came up for sale, plaintiff deposited 1070 odd fanams in discharge of the liability of defendant No. 1 and sued defendant No. 1 for reimbursement of the amount deposited by him with interest.

(2.) DEFENDANT No. 1 contends among other things that plaintiff did not deposit the amount on behalf of the defendant, but solely for the protection of his own interest in the property purchased by him in execution of the decree in O. S. 264 of 1108 and that therefore defendant is not liable to make good the amount.

(3.) THE question whether plaintiff was interested in making the deposit in O. S. 704 of 1112 therefore needs consideration. In para. 15 of his written statement defendant No. 1 admits that plaintiff deposited the amount for the protection of his interest in the properties purchased by him in execution of the decree in O. S. No. 304 of 1112. This is his statement : defendant No. 1 thus admits in clear terms that plaintiff was interested in making the payment. This admission along with the finding of the lower court that defendant No. 1 was bound by law to pay the decree debt in O. S No. 704 of 1112 is sufficient to grant a decree to plaintiff. But we do not propose to base our conclusion on the admission of the defendant alone. THE word "interested" in S. 70 of the Contract Act has been interpreted in a series of decisions to include apprehension of any kind of loss or inconvenience or any detriment capable of being assessed in money. We have therefore to see whether plaintiff had any reason to apprehend loss or inconvenience or any detriment capable of being assessed in money when he deposited the decree debt in O. S. 704 of 1112. Plaintiff's son as P. W. 3 swears that plaintiff purchased the properties in execution of his decree in O. S. 264 of 1108 for Rs. 552 chs. 7. This amount must represent the money due to him under the mortgage of 1088 and the purakkadams of 1095 and 1105. In O. S. 704 of 1112 defendant No. 1 was exparte. In that suit there was a dispute between plaintiff and P. W. 2 with regard to the extent of plaintiff's prior charge to fanams 1442 only. It cannot therefore be said that plaintiff had no reason to apprehend any loss or inconvenience or detriment in respect of the sale of the properties, in execution of the decree in O. S. 704 of 1112. He therefore deposited the amount from defendant No. 1 under the decree in O. S. 704 of 1112 and avoided the sale for the protection of his interest in the properties. In Karan Singh v. Ishiaq husain, reported in I. L. R. 43 All. at 268, a Division Bench of the Allahabad high Court held that a claim for reimbursement is sustainable in similar circumstances. In that case a prior mortgagee had obtained a decree without impleading the puisne mortgagee and had the properties sold in court auction for the amount due to him under his decree. A third person purchased the properties in court auction. THE puisne mortgagee who had also obtained a decree for sale on his mortgage proceeded to execute his decree and the auction purchaser in execution of decree of the prior mortgagee paid up the decree amount of the puisne mortgagee and then brought a suit for recovery of the amount from the mortgagors. It was held in that case that the court purchase by plaintiff in that suit in execution of the decree of the prior mortgagee was not subject to the puisne mortgagee and that he was entitled to reimbursement of the money which he paid to discharge the subsequent mortgage for which defendants in that suit were primarily liable. We therefore hold that plaintiff was interested in depositing the decree amount in O. S. 704 of 1112 which defendant No. 1 was bound by law to pay and that he is entitled to a decree under S. 70 of the Contract Act (Travancore) corresponding to S. 69 of the Indian Contract Act.