THOZHAPPA IYENGAR ALIAS ALAGAR IYENGAR Vs. P GANAPATHY

JUDGEMENT

(1.) THE plaintiff is the appellant before me. He filed the suit for redemption of two mortgages executed on 11.8.1967 under Ex. A1 and 6-3-1972 under Ex. A2. According to the plaintiff, he was liable to pay only a sum of Rs. 2,365/- which he had already deposited to the credit of O.S. No. 1398 of 1978, an earlier suit filed by the plaintiff for redemption claiming benefits under Tamil Nadu Act 40 of 1978. THE earlier suit had to be dismissed as infructuous in view of the passing of Tamil Nadu Act 40 of 1979. In the present suit, the contention of the plaintiff is that he is not liable to pay any other amount to the mortgagee as he is entitled to the benefits of Tamil Nadu Act of 1979.

(2.) THE trial court held that the plaintiff was liable to pay a sum of Rs. 7,700/- in all and after deducting Rs. 2,365/- deposited by him to the credit of the earlier suit O.S. No. 1398, of 1978 he should deposit a sum of Rs. 5,335/- for redeeming the property. THE defendants filed an appeal in the Court of the Additional Subordinate Judge, Madurai. THE plaintiff did not prefer any appeal or cross-objections against the direction of the trial court to deposit Rs. 5,335/-. When the appeal was argued, the plaintiff raised the contention that he was liable to pay only a sum of Rs. 700/- and not even the sum of Rs. 2,365/- which he admitted in the plaint to be the amount due to the mortgagee. THE appellate court rejected that contention holding that the plaintiff was not entitled to question the decree of the trial court directing him to deposit the sum of Rs. 5,335/- as he had not filed any appeal or memorandum of cross-objections, challenging the decree of the trial court. Ultimately, the appellate court dismissed the appeal filed by the defendants, confirming the decree passed by the trial court.

(3.) IN Ginani Ram v. Ramji Lal 6 it was held that if the appellate court is of the view that any decree which ought in law to have been passed but was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require . (underlining is mine). It is clear from the above observations that each case has to be decided on the facts thereof and the court must be convinced that justice of the case requires the exercise of powers under O. 41, R. 33, C.P.C.