NARASIMHULU CHETTIAR Vs. K RAMANATHA MUDALIAR

JUDGEMENT

(1.) This revision petition involves the construction of Order 34, Rule 14, C. P. C. The petitioner before us was the plaintiff in a small cause suit, S. C. S. No. 87 of 1956, filed in the court of the Subordinate Judge, Kumbakonam. That suit was instituted for the recovery of a sum of Rs. 830-10-3, being the amount alleged to be due for principal and interest under a promissory note dated 15-31954 for Rs. 740/- executed by the respondent herein. The suit was decreed in his favour. In execution of the decree, certain properties belonging to the respondent were brought to sale. These properties were subject to three usufructuary mortgagee under three bonds, dated May 1953, July 1953 and March 1954, for Rs. 6000, Rs. 4000 and Rs. 1000 respectively, and executed by the respondent in favour of the petitioner, that is, the plaintiff-decree-holder in the small cause suit. The respondent objected to the proceedings in execution and filed an application, E. A. No. 268 of 1958, praying thai further execution proceedings might be dropped. The application purported to be made under Order 34, Rule 14, C. P. C. How the respondent sought in aid the provisions of that rule is this. The respondent, after the execution of the usufructuary mortgages, took back the mortgaged properties from the mortgagee on lease on a certain rent. As he committed default in the payment of rent, he was compelled to execute the promissory note, on foot of which the small cause suit was brought.

(2.) The learned Subordinate Judge has found on the evidence that the promissory note was executed in discharge of the arrears of rent due and it must be regarded as a claim arising under the mortgages. This finding wag not, -- and indeed, could not he -- challenged before me. Order 34, Rule 14 (1) runs thus :

(3.) The petition came on originally before one of us, but was referred to a Division Bench.