KRISHNAMMAL AND ANOTHER Vs. KANDASAMY NADAR AND OTHERS

JUDGEMENT

(1.) This case raises an interesting question, which is bereft of any legal authority. The short facts are as follows: The second and third defendant, (Appellants) executed a mortgage in favour of the first respondent herein (Kandasamy Nadar) for Rs. 15,000/ -. On 24th December, 1969, a promissory note was executed for a sum of Rs. 7,500/ - in favour of the first respondent, by the Appellants O.S. No. 805 of 1972 was filed before the Sub -Court, Salem, on the foot of the promissory note. The appellants herein submitted to a decree. In execution of that decree, several properties were attached and lot No. 1 formed the subject matter of the mortgage. In furtherance of the attachment, the properties were brought to sale. At that stage, the appellants filed R.E.A. 441 of 1974 under S. 47 and Order 34, R. 14 of the Code of Civil Procedure, for a declaration that the decree -holder was not entitled to bring lot No. 1 to sale, contending that the promissory note was really executed for the advance interest due on the mortgage and, therefore, Order 34, R. 14, Code of Civil Procedure was a bar.

(2.) The learned Additional Subordinate Judge over -ruled this objection, and hence C.M.A. No. 115 of 1974 was preferred to the District Judge of Salem, who confirmed the finding of the Executing Court. Hence, the present Civil Miscellaneous Second Appeal.

(3.) Mr. O.V. Baluswami, learned counsel appearing for the appellants strenuously urges before me that the Courts below erred in holding that it has not possible for the appellants herein, to raise the plea of bar relating to Order 34, R. 14 of the Code of Civil Procedure, at the stage of the property being brought to sale. According to him, it is precisely for this contingency that the rule has been framed, so that the mortgaged property cannot be sold and thereby making it impossible for the mortgagor to redeem. In support of this submission, he relies on Abdul Mannan Mian v/s. Kalai Khan : 40 C.W.N. 343 Chinnappayan v/s. Narayana, A.I.R. 1940 Mad. 59:50 L.W. 677 Narasimbalu v/s. V.K. Ramanatha, 1961 (I) M.L.J. 363:74 L.W. 212, and Jagannath Prasad v/s. Daulat Ram Manocha, 1971 -3 S.C.C. 836.