YASODAIAMMAL Vs. MAHALAKSHMIAMMAL

JUDGEMENT

(1.) THIS appeal is filed by the 2nd defendant in the suit challenging the judgment and decree passed by the learned principal subordinate judge, Coimbatore in OS. No. 179 of 1979.

(2.) THE facts which are necessary for the disposal of this appeal can be briefly stated as follows : THE 1st respondent in this appeal, who is the plaintiff in the suit, has filed the suit for recovery of a sum of Rs. 15,653.75 on the basis of a mortgage deed, dated 3-2-1965 executed by one Sankarappa THEvar and his son the 1st defendant herein, for a sum of Rs. 17,000 agreeing to pay interest at 12 per cent per annum. Subsequently, Sankarappa THEvar died and his son the 1st defendant alone is his legal representative. Since the 1st defendant has paid only a portion of the amount, the suit has been filed for the balance. 2. THE suit is resisted by the 1st defendant on the ground that he is entitled to the benefits of S. 12 of Act 40 of 1979. THE 1st defendant has also pleaded some oral discharge. THE 2nd defendant who is the appellant herein contended that she is a prior mortgagee of item 2 of the suit property and the 1st defendant had become subscriber of a chit for Rs. 11,000 conducted by her and on 21-1-1964 the 1st defendant created a mortgage by deposit of title deeds and received the chit amount. It was agreed that the said equitable mortgage was to enure for subsequent borrowings by the 1st defendant. In pursuance of this agreement, 1st defendant borrowed another sum of Rs. 3,500. Since the 1st defendant failed to pay the chit amount and the subsequent loan, a suit was filed in O.S. No. 64 of 1972 and a decree was obtained. Subsequently, in execution of the decree, item 2 of the property, which was hypothecated, was brought to sale and that the 2nd defendant became the successful bidder in the court anction. It is stated that the 2nd defendant was not aware of the existence of the mortgage in favour of the plaintiff herein at the time when she filed O S. No. 64 of 1972 and as such she could not give opportunity to the plaintiff to redeem her mortgage. THErefore she prayed that a suitable decree may be passed directing the plaintiff herein to pay the sum due to her in the event that the 2nd item of the hypotheca is desired to be brought to sale.

(3.) THE learned counsel also drew our attention to O. 34, R. 4 C.P.C., wherein it is provided that whils passing a preliminary decree, there is to be a provision to the effect that the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and submitted that the entire property need not be put for sale and only such sufficient part thereof so as to satisfy the decree can be directed to be sold.