D CHAKRAVARTHI IYENGAR Vs. GANGADARA MUDALIAR

JUDGEMENT

(1.) THE plaintiff is the appellant in this second appeal. The only question that falls to be decided in this second appeal, is, whether the title of the fourth defendant who claims the suit properties should prevail over the title of the plaintiff. The first and second defendants in the action are Brothers. The second defendant mortgaged his undivided half share in the family properties to his brother, the first defendant. As the second defendant did not pay the mortgage amount, the first defendant as plaintiff instituted a suit 'in forma pauperis' (O. S. D. Chakravarthi Iyengar vs. Gangadara Mudaliar and Ors. (06. 11. 1952 -MADHC) Page 3 of 6 No. 361 of 1948) on the file of the Chingleput District Munsif's Court for enforcing the mortgage. There was a compromise decree in that suit on 18th March, 1939. Under the compromise, the parties agreed to a decree for Rs. 1545 with sub-sequent interest to be paid by the first defendant to the plaintiff. As the suit was instituted in 'forma pauperis', the compromise provided also for the payment of the court-fee due to the Government. Under Clause (6) of the decree, it was provided that

(2.) THE plaintiff obtained a decree for partition and separate possession of all the items except the three items which the fourth defendant purchased in the sale by the Government. The courts below held that the title of the fourth defendant to these three items should prevail over that of the plaintiff.

(3.) THE correctness of this decision was vigorously canvassed before us by Mr. Gopalaswami Aiyangar, the learned advocate for the appellant, on various grounds. In the first place, he raised the question that in view of the language of the decree in O. S. No. 361 of 1938 the charge in favour of the Government has no priority because the decree did not expressly state so. It is no doubt true that the decree is silent regarding the priority of the charge in favour of the Government. But under the Code, the charge in favour of the Government is declared to be the first charge on the subject matter of the suit. We must, therefore, take it that notwithstanding this omission in the decree, the charge in lavour of Government for the court-fee payable by the second defendant would undoubtedly be a first charge and would have a priority over the mortgage in favour of the first defendant. The language of the decree which refers to the respective shares of the parties in the suit properties and creates a charge for the amount apportioned between the two brothers no doubt creates some little difficulty because in the suit property which is only the undivided half share of the second defendant the present first defendant who was the plaintiff in the action had no share or interest. He was the owner of the other undivided half which was not the subject-matter of the suit. It was contended on behalf of the respondent that we should interpret the word "shares" as really meaning the "interest" of the respective parties in the hypotheca, i. e. , the interest of the plaintiff as mortgagee and the interest of the defendant as mortgagor. We think that it would be inapt to describe the intention of the mortgagee in the properties as a share in the property and therefore, it is difficult to accept the contention urged on behalf of the respondent. The intention under the decree which is a compromise decree is clearly to create a charge on the undivided half share of the defendant in all the items of properties described in the two schedules and that charge, in view of the language of Order 33 Rule 10 C. P. C. , would undoubtedly have priority over the mortgage in favour of the present first defendant.