KORA MIAH SAHEB Vs. VELAYUDHA KONAR

JUDGEMENT

(1.) THE third defendant is the appellant. The suit is for recovery of Rs. 6,348-45 and subsequent interest on foot of a mortgage dated 5-5-1946 executed by defendants 1 and 2 in favour of one Pavalesa Konar and received consideration as recited in the document. The said mortgage was made redeemable at any time after 5-5-1948. The mortgagors agreed that in default of repayment of the mortgage debt before that date they would be liable to pay compound interest at the rate of 75 paise per Rs. 100 per month, Rs. 6,348-45 is now due on the aforesaid mortgage, which is claimed in the suit.

(2.) BEFORE dealing with the points raised I shall now state the real controversy between the parties. Defendants 1 and 2 are the original owners of the suit property. On 5-5-1949 (Ex. A-2) he executed an oath in favour of Palavesa Konar. On 1-5-1949 (Ex. A-3) the second defendant executed a sale in favour of the first defendant reserving a right of residence in favour of himself and his wife. On 15-61949 the first defendant executed a second mortgage in favour of Gurunatha konar for Rs. 2,000. On 26-12-1949, the first defendant executed a third mortgage for Rs. 3,000 in favour of the first mortgagee. On 12-9-1961, (Ex. A12), mortgage for Rs. 2,000 in favour of one Kuppammal, which the mortgagee assigned to the fourth defendant. A fifth mortgage was created by the first defendant in favour of a chit fund for Rupees 3,000 and a sixth mortgage was executed by the first defendant in favour of Muthammal, the sixth defendant, for rs. 1,000. The third mortgagee's rights under Ex. A-4 were assigned to the 8th defendant on 28-6-1963. The result is that over the suit property on the date of the suit the following persons held rights-

(3.) THE learned counsel for the appellant contends: (1) That the suit is not maintainable as the plaintiff's remedy, if any, is also to work out his rights under the decree in O. S. 209 of 1955 (2) That the first mortgage was not fully discharged by the plaintiff, who claimed to have paid only Rs. 6,000 at the time of ex. A-11 as against Rs. 6,900 due on that date. (3) That the suit mortgage became barred by limitation on 14-2-1962, when Palavesa Konar's heirs were paid rs. 6,000 and that the acknowledgment Ex. B-4 cannot extend the period of limitation and (4) There can be no subrogation as the plaintiff was under no obligation to discharge the mortgage (Ex. A-2) it having become time barred and further the plaintiff had no interest in the property, this mortgage having become merged in the decree and that there was no mesne mortgages between the one in his favour and the other under the original of Ex. A-2, for protecting which alone he could redeem the later mentioned mortgage and claim subrogation.