THOTA CHINA SUBHA RAO Vs. MATTAPALLI RAJU

JUDGEMENT

(1.) THESE are two appeals from one judgment of the High Court of Madras, disposing of two appeals brought to it from two suits filed in the Court of Coconada. In the High Court the appeals were heard together. The material facts lie in a small compass. As the parties in the two suits and appeals are differently arrayed, it will be convenient to refer to them as the mortgagor, the mortgagees and the lessections

(2.) ON January 2, 1914, the mortgagor acting for himself and as the guardian of his undivided minor son granted a mortgage of 51.20 acres of Inam lands along with other lands (which need not be hereafter referred to as they were later on disposed of by consent of parties) to secure a sum of Rs. 30,000 lent by the mortgagees. In respect of the suit lands it was a non-possessory mortgage. ON November 27, 1915, he executed another mortgage with possession of the suit lands for Rs. 4,000, but as the lands were in the occupation of the lessees under a lease for 15 years from F. 1320 to 1331 (1910-11 to 1924-25) at an annual rent of Rs. 1,000, it was stipulated that the mortgagees were to receive the rent from the lessees and to take possession of the lands on the expiry of the lease. ON July 31, 1916, there was a further mortgage of the suit lands along with two other properties to the mortgagees for Rs. 4,000. In that deed it was provided, inter alia, that on the expiry of the lease at the end of ff. 1834 (30th June, 1925), the mortgagees should take possession of the suit lands and pay a rent of Rs. 4,000 per annum from F. 1335. It was further provided that after payment of the revenue and taxes payable in respect of the lands, the balance should be applied first in reduction of the debt due under the mortgage of 1915, next in discharge of the principal and interest due under the bond of 1916 and thereafter towards the interest due under the first mortgage of 1914. The mortgagees were however to relinquish the lands irrespective of the terms of the lease, whenever the mortgagor paid the amounts due under all the mortgages.

(3.) IN the High Court the decree for redemption was challenged on the ground that the suit was barred under Order XXIII, Rule 1, of the Code of Civil Procedure, because the previous Suit No.53 of 1929 brought for the same relief was abandoned, without obtaining leave to file a second suit in respect of the same subject matter. It was argued that the equity of redemption was therefore extinguished. It was contended that the subject matter of the later suit was the same as the subject matter in the previous suit. IN the alternative, it was contended that the mortgagor having agreed under the document of November 7, 1932, to sell to mortgagees the mortgaged properties (including the suit lands) in satisfaction of the mortgagor's liabilities under the different mortgages and for an additional sum of Rs. 100, the equity of redemption was extinguished by the act of parties and it was immaterial if the parties had carried out or not the terms of the compromise. IN the further alternative it was contended that the compromise having been partly performed the same should be enforced under Section 53 (A) of the Transfer of Property Act and therefore the mortgagor was not entitled to claim redemption, although no sale deed in fact had been executed in favour of the mortgagees. The High Court accepted the first contention and allowed the appeals of the mortgagees. It did not consider it necessary to deal with the other two alternative contentions.