THIRUPATHI Vs. RAJAGOPALA NAIDU

JUDGEMENT

(1.) THE point in issue in this Second Appeal, is technical and devoid of direct authority. The plaintiff sues for recovery of a sum of money due on a mortgage for Rs. 3,000, Exhibit A -I, dated 29th November, 1942. The document stated that the defendant -mortgagor put the plaintiff -mortgagee in possession as the mortgage was a usufructuary one and the plaintiff was allowed to take the usufruct towards the interest on the mortgage money and enjoy the same. The mortgage was redeemable only after a lapse of five years. There was an oral lease -back to the mortgagor which ended on 29th November, 1946 and the plaintiff was put back in possession of the property. The present suit is for recovery of Rs. 3000 being the principal money due on the mortgage, as well as a certain sum, being the rent due during part of the period when the mortgagor as lessee was in possession. So far as the Second Appeal is concerned, the only question is whether the plaintiff is entitled to get the entire principal sum of Rs. 3000 or whether the provisions of Section 9 -A of the Madras Agriculturists Relief Act is applicable. Applying Sub -section (3) of Section 9 -A the principal amount has been scaled down and the plaintiff was given a preliminary decree for sale for a sum of Rs. 2,283 -5 -4. The question in Second Appeal is whether that decision is correct.

(2.) SECTION 9 -A as it stands does not contemplate by its intendment a suit for sale. That section can come into play only where in the case of a usufructuary mortgage, the mortgagor seeks to redeem, because Sub -section (2) begins by saying: