SAROJINI AMMA Vs. KRISHNAN

JUDGEMENT

(1.) Defendants 1, 4 and 5, who are the appellants in this second appeal, challenge the decrees of both the subordinate courts granting a redemption in favour of the plaintiff. The findings of both the courts below are that the mortgagee committed default in payment of the revenue due on the property and that it resulted in a revenue sale of the properties of the mortgagor. There is also a finding that after the revenue sale, the property has come back in the possession of the original mortgagee. Therefore in my opinion according to the decisions reported in Karthiayani v. Parameswara Panicker and Others (1958 KLJ 1057) and Kekkunnaya v. Chathukutty Nambiar ( 1958 KLT 712 : 1958 KLJ 565) the principles of S.90 of the Trust Act applied and the mortgagee who has purchased the properties again is restored to the original position of mortgagee and the mortgagor is entitled to redemption. In this view, the conclusion arrived at by both the courts are perfectly correct and especially so in view of the decisions referred to above.

(2.) Mr. Sivasankara Panicker contended that admittedly the revenue due upon the mortgaged property was only one chakram and the mortgagor defaulted to pay the revenue on certain other properties which were not the subject of the mortgage, and it was because of the default of the mortgagor also and the mortgagee that the properties were sold and therefore the learned counsel contended that the principles laid down in the decisions, especially in Karthiayani v. Parameswara Panicker and others (1958 KLJ 1057) are not applicable to the circumstances of this case.

(3.) It is not possible for me to accept this contention for two reasons. (1) I was a party to the decision along with Mr. Justice Joseph in Karthiayani v. Parameswara Panicker and others (1958 KLJ 1057), and (2) that a similar point was raised before us on that occasion also and we did not accept the proposition for which Mr. Sivasankara Panicker is now contending. In fact in the decision in Karthiayani v. Parameswara Panicker and others (1958 KLJ 1057) we have observed: