SUNDARAMMAL AND ANOTHER Vs. ARUMUGHA PADAYACHI

JUDGEMENT

(1.) This revision petition is directed against an order of the Subordinate Judge, Salem, in I.A. No. 664 of 1961 in O.S. No. 1 of 1944. The proceeding before the learned Judge in the Court below was an application to amend the final decree dated 21st September 1948. The petitioner in the lower Court was the 4th defendant in a mortgage suit. The property mortgaged stood in the name of one Ammakannu Ammal, whose son's son is the petitioner, the fourth defendant. The property was mortgaged by Ammakannu Ammal and by her son jointly to the mortgagee. By the time the mortgage suit was brought Ammakannu Ammal was dead. The parties impleaded to the mortgage suit were Ammakannu Ammal's son, who was the co -mortgagor, defendant 1, his three sons, defendants 2, 3 and 4, and his two daughters, defendants 5 and 6. Defendant 4 alone claimed the hypotheca under a Will executed by Ammakannu Ammal, because, according to him, by that Will the property has been bequeathed by Ammakannu Ammal to him solely. The mortgagee, to be on the safe aside, did not define or attempt to de -limit the interest of the co -mortgagors. He therefore asked for the usual mortgage decree. It was declared by the preliminary decree that the 4th defendant, who was an agriculturist (Ammakannu Ammal herself being an agriculturist) was liable to pay only a scaled down amount in accordance with the scaling down procedure prescribed by Act IV of 1938, while defendants 1 to 3, who are non -agriculturists, were liable to pay the full amount due under the mortgage. Against that preliminary decree, an appeal was taken by the mortgagee to this Court, but that appeal was not successful. The contention urged in the appeal before this Court was that the scaling down in favour of the 4th defendant was wrong and that a decree should have been passed for the full amount against him also. In urging this contention it was not contended that the property belonged only to the first defendant and the members of his joint family, Ammakannu Ammal having no title at all despite the property standing in her name. When the appeal in the High Court failed, a final decree was passed by the lower Court". The grievance of the 4th defendant against the final decree was that it did not give effect to the clause in the preliminary decree which directed redemption on payment of the smaller amount by the 4th defendant. Without keeping this distinction in mind, it was complained that the final decree proceeded to order sale of the mortgaged property on failure to pay the larger amount due. This application, out of which the present revision petition arises, was, therefore, made by the 4th defendant for the amendment of the final decree. This wag resisted by the decree -holder -respondent. The learned Judge amended the decree by directing deletion of Cl. 3 of the final decree and re -drafting of Cl. 2. In effect, the learned Judge has directed by the final decree two sales, one for the amount due by the agriculturist debtors, defendants 4, 5 and 6 and the other by the non -agriculturist debtors, defendants 1 to 3, and he has directed both the sales to take place on the same day. Mr. Swaminatha Iyer, appearing for the petitioner, contends that the lower Court had no jurisdiction to amend the decree after it had become final and the relief now asked for should have been obtained in the appeal against the preliminary decree. At the stage when the appeal against the preliminary decree was pending, there was no need to ask for any relief in regard to this matter, because the final decree must necessarily correspond to the preliminary decree as settled by the appellate order of this Court. I do not see any force in this objection.

(2.) The second objection of Mr. Swaminathan is that by payment of the smaller scaled down amount, the debt is not extinguished and therefore the final decree for sale as it stood was proper. In support of this contention, be cited the decision of the Supreme Court in Ramaswami Aiyangar v/s. Kailasa Thevar : (1951) 1 M.L.J. 560 =, 64 L.W. 520 (S.C.). That decision ruled that though under the general law a mortgage debt is one and indivisible, exceptions to this rule should be recognised having regard to the provisions of the Madras Agriculturists Relief Act. The decision therefore provided for a mortgage decree for sale being drawn up in such a manner as to allow redemption by the non -agriculturist mortgagor by payment of the full amount of the debt due. The further question arose whether by payment of the smaller amount by the agriculturist debtor the debt was extinguished. A Full Bench of the Court in Venkatavaradanulu v/s. Ramayya, I.L.R. 1954 Mad. 158 (F.B.), answered this question in the negative. That decision makes it clear that by redemption by the mortgagor who was an agriculturist the debt as such was not extinguished till the amount due and payable by the non -agriculturist mortgagor as declared by the preliminary decree for the mortgage debt was paid up.

(3.) Mr. Swaminatha Iyer next relied upon a Bench decision of this Court in Ammalu Amma v/s. Samalam Iyer : (1960) 2 M.L.J. 158. There it was ruled that an agriculturist mortgagor was entitled to redeem his or her share of the mortgage or interest therein and could not redeem the entire mortgage by paying the scaled down amount. Impliedly, this enables Mr. Swaminatha Iyer to argue that in passing a mortgage decree, the Court is bound to indicate what was the interest in the hypotheca which the agriculturist mortgagor was entitled to redeem and what was the interest remaining for the non -agriculturist mortgagor to redeem. The Bench decision envisages that position. In view of this state of the law, which is binding on me, the question for consideration now is whether the order passed by the Subordinate Judge deserves to be interfered with.