KASILINGA PADAYACHI Vs. KALIYAPERUMAL PADAYACHI

JUDGEMENT

(1.) This second appeal arises out of the judgment and decree of the learned Subordinate Judge, Virchachalam, in A.S.No. 17 of 1984 reversing the judgment of the learned District Munsif, Virchachalam, in O.S.No. 2258 of 1981. The plaintiff in the suit is the appellant in the above second appeal.

(2.) This second appeal was disposed of by this Court by judgment dated 2.4.1998. There was no appearance on behalf of respondent at the time of hearing. Subsequently, a petition in C.M.P.No. 10805 of 1998 was filed for leave to file the petition to set aside the judgment and decree dated 2.4.1998 and restore the second appeal for fresh hearings The said petition was allowed and hence the present judgment after re-hearing the second appeal.

(3.) The suit was filed for redeeming the mortgage as against the first defendant. The plaintiff contended that the suit item in 'A' schedule property belonged to him, while item 'B' belonged to the second defendant. The second defendant had executed a possessor mortgage (Ex.A-1) in favour of the first defendant for a sum of Rs. 1,300 on 22.10.1975 and it was stipulated that the first defendant shall hold, cultivate and enjoy the income from the properties in lieu of interest on the loan amount for a period of three years, by which time if the second defendant pays the loan amount, the first defendant shall redeem the mortgage. The plaintiff further contended that the first defendant was in possession on the basis of the said understanding. As regards the 'A' schedule property, the second defendant and his wife agreed to sell the property to the plaintiff and pursuant to the agreement it was agreed that the plaintiff shall take over the liability under Ex.A-1 and discharge the same and pay a further sum of Rs. 2,200 towards the balance of sale consideration to the second defendant and his wife. It was further contended that the said amount of Rs. 2,200 was paid in two instalments and a sale deed (Ex.A-2) dated 14.9.1977 was executed. It was also pleaded by the plaintiff that he had undertaken to discharge the mortgage debt and as he was entitled to the benefits of Act 40 of 1979, after due deduction he was liable to pay only Rs. 810. A notice to the said effect was also issued to the first defendant who did not respond to the notice. Therefore, as required, he filed a petition under Section 83 of the Transfer of Property Act and he also made the due deposit in court. But as the first defendant did not respond and had refused to receive the amount, the petition filed by him was rejected and hence the suit.