GULAM KHAJA MAHAMAD Vs. PANDHARINATH VAMAN

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff to recover Rs. 3,000 on a mortgage bond of Rs. 1,500 passed to him by defendant No.1 on August 16, 1930. By that mortgage bond defendant No.1 had mortgaged survey No.59 alone to the plaintiff, but prior to this mortgage defendant No.1 had mortgaged survey Nos. 59, 71 and 171 to defendant No.2 for Its. 4,000 on April 8,1930. In execution of a money decree obtained by a stranger all the three lands were sold subject to defendant No.2's mortgage and were purchased by defendant No.2 for Rs. 700 on May 12, 1933. Defendant No.2 did not get immediate possession of the three lands, but after some proceedings he got possession of them on May 12, 1938. The plaintiff brought this suit on June 26, 1941.

(2.) THE trial Court found that Rs. 3,000 were due to the plaintiff by defendant No.1 under the mortgage, but he had also a right to redeem defendant No.2's prior mortgage; and the trial Court further found that on that mortgage the total amount due on May 12, 1933, when defendant No.2 purchased the mortgaged lands came to Rs. 6,480. THE assessment of the three lands is Rs. 83-10-0 and the assessment of survey No.59 alone is Rs. 34-8-0. Hence proportionately the liability under the mortgage of that land was found to be Rs. 2,272-8-0. Defendant No.2 was not allowed any future interest from the date of the auction purchase as he was in possession. THE trial Court, therefore, passed a decree declaring Rs. 3,000 to be due on the' plaintiff's mortgage at the date of suit. Defendant No.1 was ordered to pay to the plaintiff that amount with future interest and costs. THE decretal amount was made payable by annual instalments of Rs. 500. In default, the plaintiff was allowed to recover the amount by the sale of survey No.59 subject to defendant No.2's mortgage charge of Rs. 2,272-8-0. A decree under Section 15b of the Dekkhan Agriculturists' Relief Act was directed to be drawn up accordingly. Defendant No.2 appealed to the District Court complaining that he should have been awarded future interest from the date of his auction purchase and the property should have been ordered to be sold subject not only to Rs. 2,272-8-0 but also to such future interest. THE learned Assistant Judge who heard the appeal relied upon the ruling in Syed Ibrahim Sahib v. Arumugathayee (1912) I. L. R. 38 Mad. 18 and held that the prior mortgagee was not entitled to claim any interest on his mortgage from the date he took possession of the mortgaged property as its auction purchaser. He, therefore, confirmed the deciee of the trial Court and dismissed the appeal.

(3.) ONE other point urged on behalf of defendant No.2 is that the lower Court erred in holding that the interest on his mortgage amount ceased from the date of his auction purchase although he got actual possession of the lands five years thereafter. The learned Assistant Judge has remarked that defendant No.2 would be entitled to recover mesne profits from the mortgagor from the date of the auction purchase. But there is no question of the interest ceasing altogether from any particular date. The interest does run so long as the mortgage is not redeemed. But in calculating the interest credit has to be given to the profits actually realised by the prior mortgagee from the mortgaged property. If the test of the amount due from the subsequent mortgagee is what the mortgagor himself would have had to pay for redeeming the mortgage, then it follows that the mortgagor being in possession five years after the auction sale he could not ask for accounts of profits from the prior mortgagee until he delivered possession of the mortgaged property to him. Hence the proper course would be to require the prior mortgagee to render an account of the profits actually realised by him and to require him to appropriate that amount towards the interest due.