PALAKKADVATH CHANTHUS CHILDREN ACHUTHAN Vs. POOTHAKANDIYIL CHOYI

JUDGEMENT

(1.) The main question that falls to be decided in this case is whether the usufructuary mortgagee who parted with a portion of the mortgaged property is an intermediary within the meaning of Clause (j) of Section 3 of the Malabar Tenancy Act so as to be entitled to the benefits of the provisions of Act 24 of 1949 as amended by Act VIII of 1950. The judgment-debtors in O. S. No. 309 of 1942 are the appellants in the appeal.

(2.) The circumstances that culminated in this Civil Miscellaneous Second Appeal may be briefly mentioned. The respondents herein filed a suit O. S. No. 309 of 1942 for redemption of the usufructuary mortgage created by them in favour of the appellants. The suit was contested on various grounds but ultimately it was decreed and the time for redemption was fixed. While this matter was pending appeal in this Court, an attempt was made to have the proceedings in appeal stayed by making a deposit under Section 4 of Act 24 of 1949. But it proved infructuous as no deposit was made in time as contemplated by provision of that section. Ultimately when the plaintiff decree-holder levied execution the appellants applied for stay of execution of the decree under Section 4 (1) of the Act 24 of 1949.

(3.) This was opposed by_ the decree-holder on the ground that the provisions of Section 4 (1) of Act 24 of 1949 as amended by Act 8 of 1950 have no application to a decree for redemption of the usufructuary mortgage, that the judgment-debtor having only sub-mortgaged a portion of the property mortgaged, this case is not governed by the provisions of Section 4 (1) of Act 24 of 1949 or Section-sections (2-A) or (2-B) of Section 4 as amended by Act 8 of 1950 as they apply only to a case where the usufructuary mortgagee has leased out the property to a third party and that in any event the judgment- debtor is not entitled to the benefit of the Act as he has not parted with the entire extent of land mortgaged to him and therefore does not come within the meaning of "intermediary" under Section 3 (j) of the Malabar Tenancy Act. These objections found favour with the trial Court which dismissed the application of the judgment-debtors for a stay of execution of the decree.