CHELLAMMAL Vs. ABDUL GAFFOOR SAHIB

JUDGEMENT

(1.) THE correctness of the decision in Sreenivasa Rao v. Abdul Rahim Sahib, 19562 mad LJ 189 : (AIR 1956 Mad 618) is the question that is raised in these two appeals. We shall briefly set out the facts leading thereto.

(2.) S. A. No. 1048 of 1957 arises out of a suit on a mortgage executed on 26-101949. The principal sum was Rs. 2000/-and the contract rate of interest 18 per cent. A sum of Rs. 900/- had been paid by the mortgagors towards interest upto 1-4-1952. It has been duly appropriated. In the suit, the mortgagors contended that the payment of Rs. 900/- should be credited towards the principal. Relying on sreenivasa Rao v. Abdul Rahim Sahib, 19562 mad LJ 189 : (AIR 1956 Mad 618)Ramalakshmi v. Gopalakrishna Rao, 1944-2 Mad LJ 285 : (AIR 1945 Mad 12) the trial Court rejected this contention; but in appeal, the learned Subordinate Judge held that 1956-2 Mad LJ 189 : (AIR 1956 Mad 618), applied to the facts of the case. He accordingly reopened the appropriation already made. By the time the matter came up in second appeal before Somasundaram, J. , the decision in S. M. Tharanganar v. Sankarapandia Mudaliar, (FB), had been rendered by a Full Bench of this Court. The learned Judge was inclined to take the view that the Full Bench decision in effect overruled the decision in 1956-2 Mad LJ 189 : (AIR 1956 Mad 618), and directed the papers to be placed before the hon'ble the Chief Justice for reference to a Full Bench.

(3.) L. P. A. No. 55 of 1959 arising out of an application O. P. No. 77 of 1955 under sec. 19-A of the Madras Agriculturists Relief Act. That dealt with a mortgage executed on 24-5-1947, carrying interest at 12 per cent per annum. The petitioners mortagagors claimed relief under the Act and contended that though they had paid certin amounts towards interest, these appropriations should now be reopened and that the payments made by them should be applied towards the principal and interest thereon calculated at 6 1/4 per cent uptil 28-7-1947 and at 5 1/2 per cent thereafter. The learned Subordinate Judge accepted this contention in view of the decision in 1956-2 Mad LJ 189 : (AIR view of the decision in 1956 Mad 618 ). This decision was the subject-matter of an appeal A. A. O. No. 2 of 1957before ganapatia Pillai, J. The learned Judge interpreted (FB) to mean that this mode of reappropriation would not be applicable to a case governed by section 13 of Act IV of 1938. Though the learned Judge does not in specific terms say so, he appears to have held that the Full Bench decision in (FB) overruled the decision in 1956-2 Mad LJ 189 : (AIR 1956 mad 618 ). The appeal was accordingly allowed. In the Letters Patent Appeal, the bench before whom it came up for hearing made an order that the papers should be placed before the Hon'ble the Chief Justice for disposal of the appeal by a Full bench in order that the correctness of the decision in 1956-2 Mad LJ 189 : (AIR 1956 Mad 618) may be finally settled.