K. SUNDARAMOORTHY MUDALIAR Vs. MANICKAMMAL AND ANR.

JUDGEMENT

(1.) THIS Civil Revision Petition arises out of proceedings in an Unnumbered Original Suit of 1962 on the file of the Court of the District Munsif of Ranipet. The plaintiff is the petitioner herein. He filed a suit for a declaration that the equitable mortgage executed by the second defendant to the first defendant on 20th May, 1953 is not binding on the plaintiff.

(2.) THE facts necessary for the disposal of this Revision Petition are as follows. The property originally belonged to the second defendant and he sold the same to the plaintiff on 30th August, 1958. It is only after this purchase the plaintiff came to know that there was an equitable mortgage in respect of the property created by the second defendant in favour of the first defendant and that in respect of that the first defendant had obtained a decree and that execution proceedings are now pending. In order to remove the cloud to title he had filed the suit for a declaration that the mortgage deed executed by the second defendant in favour of the first defendant is not binding on him, and, that any decree passed in consequence of that will not affect his right to the property.

(3.) THE question now is whether the petitioner is liable to pay Court -fee under Section 40, that is, for the cancellation of the equitable mortgage created by the second defendant in favour of the first defendant, or whether he should pay Court -fee under Section 25(d) of the Act for a mere declaration that the equitable mortgage is not binding on him.