A. THIYAGARAJAN Vs. R.V. SWAMINATHAN

JUDGEMENT

(1.) The first respondent filed a suit in O.S. No. 21 of 1966, on the file of the Sub -Court, Sivaganga to recover certain amounts from the second respondent. The suit was decreed. Pursuant to the decree, the first respondent filed E.P. No. 75 of 1980 to execute the same. In the said execution proceedings, the appellant herein filed E.A. No. 58 of 1982 under Order 21, Rule 58 of the Code of Civil Procedure claiming that the second respondent mortgaged the said property on 24.10.1977 to the appellant and obtained a sum of Rs. 20,000/ - on the basis of the said usufructuary mortgage. The appellant claims that he has been in enjoyment of the property in question. The second respondent contested the petition stating that he discharged the mortgage by paying the money on 28.1.1981.

(2.) The lower Court in its order dated 4.8.1983 held that the mortgage is in force and not discharged as claimed by the second respondent, and, on mat basis, the application filed by the appellant was allowed. The second respondent herein filed an Appeal in C.M.A. No. 145 of 1983 on the file of the learned District Judge, Ramanathapuram at Madurai. The learned District Judge though concurred with the finding of the lower Court regarding the subsistence of the mortgage, rejected the petition on the ground that the petition filed under Order 21, Rule 58 of the - Code is not maintainable at the instance of the appellant, and on that basis dismissed the appeal. Aggrieved against the same, the appellant has filed the above appeal.

(3.) In view of the concurrent findings of the Courts below, that the mortgage had not been discharged as claimed by the second respondent and that the mortgage is in force, this Court has to decide the issue raised on the basis of the said findings.