K J KATHANAR Vs. SANKARA WARRIER

JUDGEMENT

(1.) A preliminary point is raised that the court fee paid on the memorandum of appeal is insufficient. The suit out of which the appeal arises is to redeem a unsufructuary mortgage dated 23rd Medam 1085 in favour of the 1st defendant in respect of 36 items of immovable properties. The principal amount secured there under is Rs. 9,141. ch. 19 c.o. On 7th Vrischigam 1096 the 1st defendant sub-mortgaged this mortgage right to the plaintiffs, the appellants herein. The sub-mortgage, however, relates only to 12 items included in the mortgage and it is for an amount of Rs. 7,151. ch. 3 c.8 On 22nd Vrischigam 1097 the original mortgagor executed an Udampadi in favour of the plaintiffs with respect to the 36 items included in the usufructuary mortgage and certain other properties belonging to him. According to the plaintiffs they obtained thereunder the full title to the equity of redemption over the 36 items included in the usufructuary mortgage and the full rights over the other properties comprised therein (Udampadi). The document expressly authorises the plaintiffs to redeem the usufructuary mortgage and the present suit was brought for that purpose.

(2.) The 1st defendant resisted the suit on various grounds and impugned the validity of the Udampadi. He also instituted a suit to redeem the sub-mortgage. The two suits were tried together. It was found that the Udampadi was a valid document, but that it was only a meloti conferring upon the plaintiffs the rights to redeem the usufructuary mortgage in favour of the 1st defendant. The court, however did not grant the plaintiffs an unconditional decree for redemption. Prior to the institution of these two suits the mortgagor had executed a Puravaipa deed in favour of the 1st defendant and the court found that that document conferred on the 1st defendant the right to redeem the melotti. The court, therefore, while granting the plaintiffs a decree for redemption made it a condition that in case the 1st defendant deposited in court for payment to the plaintiffs the principal money expressed to be secured by the meloti, within two months, the decree shall not take effect. The principal amount due was fixed at Rs. 8,742 ch. 9 c.4. The decree was passed on 29th Thulam 1121 and the 1st defendant complied with the condition imposed on him by depositing in court the said amount on 3rd Dhanu 1121. This appeal was filed on 15th Karkadagam 1121. A similar decree was also passed in the 1st defendant's suit and that forms the subject of the connected appeal, A.S. 571/1121. That appeal is also preferred by the present appellants.

(3.) The plaintiffs appellants seek two reliefs in the present appeal. Those two reliefs are.- (1) deletion of the condition imposed by the court below on plaintiff's right to redeem and (2) enhancement of the rate of mesne profits fixed by the court below. We are not, in the matter of preliminary objection, concerned with the second relief.