AYILAVAJJULA SUBBARAYA SARMA Vs. CHILAKAPATI SUBRAMANYAM

JUDGEMENT

(1.) THE only question in this second appeal is whether the mortgagee is entitled to sue for recovery of his money by sale of the hypotheca.

(2.) ONE Venkatachelamayya executed a will dated 19 -10 -1926 whereunder he bequeathed the plaint scheduled properties along with others to the first defendant, his wife, to be enjoyed by her for her lifetime and the remainder to his daughter's son, the 2nd defendant. The 5th defendant is the daughter of the said Venkatachelamayya and defendants 2 to 4 are her sons. One Pitchireddi in whose favour Venkatachelamayya executed a promissory note filed O. S. No. 769 of 1932 on the file of the District Munsif, Nellore, against the first defendant to recover the money due thereunder, and he obtained a decree on 16 -12 -1932. Another creditor of Venkatachelamayya filed O. S. No. 1022 of 1932 and obtained a decree therein. On 17 -8 -1932, the first defendant executed a conveyance in favour of the 2nd defendant in respect of her life interest in the suit properties. In execution of the decree in O. S. No. 769 of 1932 the properties were brought to sale. When the 2nd defendant filed a claim petition it was dismissed. He filed O. S. No. 20 of 1934 on the file of the District Munsif's Court, Nellore, to set aside the order in the claim petition.

(3.) THE District Munsif, and in appeal the District Judge, held that the mortgage was supported by consideration and was binding upon the second defendant. They also held that the mortgage amount could be recovered by sale of the mortgaged properties.