D MAYANDI THEVAR Vs. A BALU ALIAS BALACHANDRAN

JUDGEMENT

(1.) APPELLANT Mayandi Thevar is the first defendant in O.S.No.474 of 1982 on the file of Sub Court, Madurai, instituted by the plaintiffs/first respondent and two others claiming the redemption of the mortgaged property. The plaintiffs having lost in the trial court filed an appeal in A.S.No.121 of 1984 before the learned single Judge of this Court. The said appeal, after hearing the parties, was allowed by setting aside the judgment and decree of the trial court and decreeing the suit filed by the plaintiffs. Having aggrieved over this, the appellant/first defendant has come forward with this L.P.A. before this Court.

(2.) THE case of the plaintiffs is as follows: THE first plaintiff mortgaged the suit property belonging to the plaintiffs on his behalf and on behalf of his two sons, the plaintiffs 2 and 3 on 17.11.1961 with one Periasamy Servai. From the said Periasamy Servai, on 28.9.1963 the appellant/first defendant got the mortgage made over to him. On 5.12.1963, the first plaintiff for himself and on behalf of other plaintiffs created a second mortgage in favour of the first defendant. He had again executed a mortgage third time on 13.4.1966 in favour of the first defendant. On 1.11.1969, the plaintiffs executed further mortgage for a period of 13 years. THE period of mortgage expires on 1.11.1982. THE plaintiffs have to pay Rs.41,000 to the first defendant towards the discharge of the mortgage.

(3.) ON consideration of the entire materials, the trial court dismissed the suit on 23.1.1984 holding that the first plaintiff had entered into an agreement of sale on 1.10.1975 with the first defendant and that therefore, the plaintiffs are not entitled to redeem the suit property.